Criminal Justice and Immigration Bill

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Schedule 11

Alternatives to prosecution for persons under 18
Harry Cohen (Leyton and Wanstead) (Lab): I beg to move amendment No. 183, in schedule 11, page 165, line 38, leave out ‘more’ and insert ‘both’.
The Chairman: With this, it will be convenient to discuss amendment No. 142, in schedule 11, page 166, leave out line 2.
Harry Cohen: This is a probing amendment, to try to get some information from the Minister. My source is Liberty, which has expressed concern that cautions will be imposed on youth offenders with the objective of imposing punishment. Liberty says that there is a two-step system, which leads automatically to court if the young person offends again within two years. That system is in place under the Crime and Disorder Act 1998.
Liberty is worried that the measure
“acts as a funnel, channelling young people into the criminal justice system and removing the option of informal intervention as a way of tackling low-level offending. The result is growing numbers of young people embroiled in a criminal justice system which, once entered, is difficult to escape.”
Liberty and I acknowledge that, in clause 53, the Government are proposing to give police and prosecutors an alternative to reprimand and final warning, which will be done by extending the adult conditional caution scheme to 16 and 17-year-olds. However, Liberty says:
“We fear that, in practice, youth conditional cautions could operate as a short cut to punishment for 16 and 17-year-olds. Cautions are supposed to be an alternative to entering the criminal justice process”.
But, of course, 16 and 17-year-olds could become embroiled in the criminal justice process under this route and the two-tier system to which referred earlier.
Liberty goes on to say:
“There is, however, a real danger that conditional cautions will be used as a short cut to punishment, intended for use in large numbers of cases.”
It would be interesting to hear what the Minister thinks about the number of cases that will be caught up in this process.
The concern is that the conditional cautions will be used for punishment. Under the Criminal Justice Act 2003, they could only impose conditions described as relating to rehabilitation and reparations, so there has been movement towards punishment. Is it the Minister’s intention that youth conditional cautions should be punitive? I want to refer to the representations of the Magistrates Association to an earlier clause on a related matter. It argued that it was
“contrary to the principles of justice for prosecutors and police to be able to impose punishment without the involvement of the judiciary.”
That represents a problem because we expect the courts to hand down punishment, and not for the police and the prosecutors to do so without reference to the court. The Magistrates Association argues that
“A democratic legal system ensures that an independent tribunal—the judiciary—should sentence and impose punishment, thus preventing bias from prosecutorial authorities.”
That is an important point in relation to youth conditional cautions because they put matters in the hands of the police and the prosecutors, instead of the court. I would be interested to hear what the Minister has to say on that aspect
Liberty’s final point in its representations to me concerned an unfairness. It says that
“in theory, a person does have a choice about whether to accept a caution”
but that in reality that could be very different, particularly for young people. They could have a fear of prosecution and so opt for the caution; they could have limited understanding of the options available or limited access to legal advice and so go for the caution when that might not be what they should opt for.
The second area on which there is a lack of clarity is the financial penalty that could be imposed following a caution. Liberty says that that could be unfair, resulting in a two-tier system of punishment. It is all right if a youngster or their parents can afford the fine, but a youngster who cannot afford it or does not have parents who can lend them the money would not be able to accept a caution with a fine attached to it. I have tabled the amendment because I think that it is worth getting an explanation from the Minister on those points.
Mr. Burrowes: I am grateful for the opportunity to speak to the amendments and for the way in which the hon. Member for Leyton and Wanstead approached the debate. I want to restrict my comments to the issue of punishment being part of the youth offending regime in terms of youth conditional cautioning, rather than the issue of a penalty being imposed, which we can perhaps deal with when we discuss the next set of amendments.
The concern expressed by Liberty, but also by the Standing Committee for Youth Justice relates to the principle of punishment being part of the youth offending regime. I do not wish to deal with that debate; I wish to focus on whether punishment is appropriate for a pre-court disposal. The case has already been made that there has been movement. Initially, adult conditional cautions were limited to the purposes of rehabilitation or reparation, but the Police and Justice Act 2006 extended the scheme in order to allow punitive conditions. No doubt the case made by the Government is to extend the youth conditional cautioning to mirror the change within the Police and Justice Act 2006. However, the Government’s cross-departmental review of delivering simple, speedy summary justice in July 2006 said:
“We also intend to legislate for a youth version of the Conditional Caution to provide a robust intervention that requires the young person to take responsibility for formal action to make amends and tackle underlying problems in a supported way.”
No mention is made of the punitive element that is put in place under the Bill.
The Government’s review went on:
“We are working with the Youth Justice Board and the Association of Chief Police Officers to develop effective restorative interventions for first misdemeanours where a formal criminal justice response that forms part of an offender’s criminal record and is declarable to employers would be disproportionate. Getting a young person to apologise face to face and make amends is an important part of their learning. This is not about going soft on crime. A face to face apology is often quite difficult for a young person to do.”
Drawing on earlier arguments, the Government are making the case for extending youth conditional cautions on the back of debates about the restoration and rehabilitation areas of conditional cautioning. They are also slipping in the punitive element to mirror adult conditional cautioning. The most acute issue is that the schedule is a pre-court disposal. It is not so much a matter of whether punishment should be an explicit aim. That was dealt with perhaps not in the most grown up of fashions, nevertheless press releases do not have to be issued this week. We must consider whether punishment should be used and administered pre-court. Most members of the public would expect it to be administered in the proper setting of a court, and that it should receive its appropriate disposal in that manner.
The pre-court disposal in the schedule and youth conditional cautioning would be administered on the recommendation of a Crown Prosecution Service lawyer and then by the police. There would be no involvement or independent involvement of the estate arm. There may well not be legal representation, and it would be left to the police and the Crown Prosecution Service to deal with the different functions. They would be dealing with investigation and prosecution, and they would be the judge. All those three hats would be worn in the process of a pre-court disposal.
The amendment asks whether it is appropriate for punishment to be part of youth conditional cautioning, given that it is before the court. That matter seemed to be accepted earlier by the Government until it came to be mirrored by the adult cautioning process. They then seemed to veer back from their original intentions of conditional cautioning in their review of delivering simple, speedy summary justice. We now see in the Bill that they have mirrored the adult conditioning approach and have sought to include a punitive element. That has caused many members of the public, hon. Members and magistrates to worry that the Government’s wish to bring people to justice is focused particularly at the pre-court disposal and, in their effort to seek disposals, justice is very much denied. The fast track to punishment does not necessarily lead to a fast track to justice. I should be interested to know why the Government have changed their approach and feel it necessary to include punishment as part of youth conditional cautioning.
Mr. Hanson: I thank my hon. Friend the Member for Leyton and Wanstead for eventually moving the amendment, to which he added his name in a late fashion. The debate has been useful. The principle of youth conditional cautions is to have, as my hon. Friend and the hon. Member for Enfield, Southgate have said, a pre-court disposal to ensure that we examine behaviour and look at reparation, rehabilitation and punishment.
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I have to say to my hon. Friend that I do not anticipate that all youth conditional cautions will include elements of punishment as well as rehabilitation or reparation, but they could do. There are two reasons why I do not want a situation in which the youth conditional caution does not include a potential element of punishment. First, it is important that the proposed pre-court disposal gives an element of confidence to members of the community who, as the hon. Member for Enfield, Southgate mentioned earlier, are the potential victims of the person receiving the youth conditional caution. Within that element of confidence there must also be the potential for an element of punishment.
I will give two practical examples. Suppose an individual steals something from a shop. The goods are recovered, and a youth conditional caution is considered an appropriate form of order against the individual, because of the nature of their behaviour to date, and as a way of having another pre-court disposal forum. The goods are recovered and the individual is found guilty of shoplifting. The youth conditional caution should contain a potential element of punishment—courses or reparation—as well as rehabilitation. Punishment might well be central to the process.
I will give another example. Suppose an individual draws some graffiti on a wall of a building, and writes their name across it. By the time they face the youth conditional caution, the owner of the property has removed the graffiti. We therefore cannot have reparation because the graffiti has been removed. We could have rehabilitation, but there would also be an element of punishment if the pre-court disposal ordered the individual to undertake the removal of other graffiti in another part of town, as punishment for the actions that gave them the youth conditional caution on that day. A number of circumstances within that show that the element of punishment is not draconian, but it is an option within the youth conditional caution to give confidence to the community and to ensure that victims feel that punishment is part of the response. However, it would not be used in every case, and I hope that that reassures my hon. Friend from the point of view of his amendment.
From my perspective, the purpose of the youth conditional caution is, as we discussed earlier, to ensure that we have an intervention that allows the young person to face the consequences of their action. It will allow them to undertake some form of rehabilitation, and hopefully, it will allow them to make some reparation to the victim. If necessary, it would also provide an element of punishment for the young person, as part of the desired effect of the youth conditional caution is to ensure that that person does not appear in court at a later date for more serious crimes.
Mr. Burrowes: It is helpful to draw out some of those examples. Is not the problem that there are limitations on how far there can be a punitive element, and perhaps even a reparative or restorative element, in the conditional cautioning process? Let us take the case of graffiti on the wall and imagine that it could not be removed or that some damage had been caused to the wall, so there was a need to compensate the victim. Is it not the case that, whether it is called compensation for the victim, or reparation or whatever, in reality that compensation order could not be properly imposed or administered pre-court? To be effective, it would need to be administered in court by way of attachment to a reparation order or the like. That is just one example of how, in certain circumstances, the desires for reparation or punishment cannot be truly met. One needs to be cautious about extolling the virtues of conditional cautions, because they are inherently limited by their very nature.
Mr. Hanson: I hope that I do the hon. Gentleman justice in saying that I think that he would, in principle, support youth conditional cautions. I am paraphrasing, but I think that he wants to see interventions that are effective, that help with rehabilitation and reparation, and that are pre-court—sometimes we do not want to escalate the young person into the criminal justice system. Hopefully, the youth conditional caution will be a major intervention, to stop people coming back to court later.
I will certainly examine the points that the hon. Gentleman has made. However, it seems to me that the order contains an element of punishment, which has to be present to generate community confidence. It has the potential to be an intervention that will ensure that the young person does not return to court later, because they will have seen that the youth conditional caution is not just a soft option for them, but has its own elements of rehabilitation, reparation and punishment. Consequently, the young person will recognise that it is a serious intervention in their offending behaviour, with the objective of keeping them out of court.
I understand that the offender could be required to compensate, but in this case that would not be part of a court order. So I will reflect in detail on the point that the hon. Gentleman has made, and if there is anything that I need to add to what I have already said then I will write to him.
These amendments proposed by my hon. Friend the Member for Leyton and Wanstead are helpful in that they have teased out the details. I do not intend all youth conditional cautions to have an element of punishment, but I do not wish to rule out the possibility of such an element. The conditional caution will reflect the circumstances of the case and the court will determine whether, for the sake of the individual and for community confidence, an element of punishment should be included. I hope that my hon. Friend will withdraw his amendment.
Harry Cohen: I thank my right hon. Friend for that clarification. I would be grateful if he cleared up one further point. The Liberty briefing referred at the end to the possibility of a fine or some monetary costs being associated with the conditional caution. Will he confirm that that is the case?
Mr. Hanson: I have not dealt with that issue because the next set of amendments deals with the question of a fine. I thought that we could have two debates for the price of one.
Harry Cohen: I am grateful to the Minister for his clarification. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Burrowes: I beg to move amendment No. 143, in schedule 11, page 166, leave out lines 5 to 8 and insert
‘a condition that the offender attend at a specified place at specified times, but may not include a condition that the offender pay a financial penalty’.
The Chairman: With this, it will be convenient to discuss amendment No. 144, in schedule 11, page 167, leave out lines 1 to 24.
Mr. Burrowes: In moving the amendment, I hope to provide good value by enabling us to talk about financial penalties.
The purpose of the amendments is effectively to exclude from youth conditional cautions the opportunity or power to impose a financial penalty. The principle is one that we have outlined before in terms of achieving the best value approach, and I do not wish to repeat that discussion. Nevertheless, it is important to consider the appropriateness of a pre-court disposal in the light of its being pre-court and therefore not designed to mirror or to replicate what can be properly achieved only by way of a court disposal.
The concern underlying the amendments is that a financial penalty is a significant penalty, particularly when one is dealing with young people, although the figures show that the fines the courts impose on young offenders are less than the fines for adults. There are also significant issues of enforcement. When we try to transpose the imposition of a fine on young offenders into the youth conditional cautions, one must consider whether that caution is an appropriate vehicle for a fine.
There is also an issue of practice. The practical side to a financial penalty is problematic for courts—the problems that magistrates courts have had in relation to enforcement of fines are well known by members of this Committee and by others—and it is that much more difficult when one is dealing with young offenders, who are dependent on their parents to pay the fines. It can therefore be difficult to enforce any financial penalty. Indeed, we shall be dealing in a later debate with the whole issue of enforcement in relation to young people and the problems that have arisen.
Mr. Hanson: As I said earlier when responding to amendments Nos. 183 and 142, punishment should be an option available under the youth conditional caution. My hon. Friend the Member for Leyton and Wanstead asked whether a fine could be levied on an individual under the youth conditional cautioning system. The amendments would remove that option, but it is important that we consider that element of punishment and decide whether a fine is appropriate in those circumstances.
If we reduce or remove the fine element as proposed, we would remove some of the flexibility of the youth conditional caution. For some individuals aged 16 or 17, the payment of a fine could both act as an effective deterrent and punishment, and be something that allows the individual to take in the offence and move on from it fairly quickly. It might be equally important that the youth conditional caution is available for some offences that, as I said earlier, do not merit reparation and do not particularly merit rehabilitation because the offence may be something for which the individual does not need broader rehabilitation. However, it might be effective as a punishment of the individual and a deterrent to be used in the pre-court disposal of the youth conditional caution.
Many 16 and 17-year-olds are at work and have a disposable income. That would be taken into account when considering the fine element of the youth conditional caution. Furthermore, many 16 and 17-year-olds might prefer a fine to another disposal available under the order. I am trying to maintain flexibility within the youth conditional caution that allows a range of options to be available, including punishment. It is already the case that a fine in the form of a fixed penalty notice can be issued in a pre-court disposal. We are therefore not breaking any new ground.
I expect account to be taken of the offender’s means. I certainly do not want a fine to be imposed on an offender who is not in a position to pay it. That would be a retrograde step and might even lead to an escalation of the behaviour that led to the imposition of the conditional caution. However, it is important to have such an option available to the youth conditional caution process and, for that reason, I ask the hon. Gentleman to withdraw the amendment.
2.15 pm
Mr. Burrowes: I do not want press the amendment to a Division. However, a valid concern was expressed by the Magistrates Association in evidence to the Committee about a financial penalty being attached to youth conditional cautions. It sees the problem in the context of the enforcement of fines and the need for them to be subject to means. The Minister described the importance of flexibility, but the problem is the extent to which it is within the province of the Secretary of State by order to prescribe which offences could be subject to financial penalties.
That raises an important point about the extent of the pre-court disposal, in which the type of financial penalty that is deemed appropriate for a particular offence is at the behest of the Secretary of State. It would be administered by the police, rather being determined in a more traditional way by magistrates, subject to guidelines and case law. The concern is that we might be moving towards a form of summary justice which does not involve normal avenues of the law. The measure is one-sided: it is decided by the Secretary of State, who can order which offences should have a financial penalty; and on the same side, the agencies of the state and the police under the advice of the CPS, would decide on the appropriateness of the penalty.
We will not have a meeting of minds on this matter, but perhaps the Minister could respond to the underlying concerns and help the Committee, and indeed those practitioners who will have to deal with the issue, to understand the reality of the situation in relation to financial penalties that do not involve a court disposal, but a pre-court disposal.
Mr. Hanson: I wanted to check the figures before I intervened. However, I understand the performance on fine enforcement is now generally extremely high—from memory, the figure is over 90 per cent.—so if the youth conditional caution has a fine attached to it there can be every expectation that that fine will be enforced. Secondly, it is important to realise that if a financial penalty was imposed and not paid, that could be a breach of the youth conditional caution. That in itself could lead to a further fine or court appearance, which acts as an incentive to the individual to pay the fine and keep out of court.
Mr. Burrowes: I acknowledge that there has been an improvement in the enforcement of fines, but I am not sure if the figure of 90 per cent. applies to youth court enforcement and the level of success in that area. The other problem with those figures is that they do not include compensation orders and the amount of enforcement that takes place in relation to that. The jury is still out on the success of enforcement.
I do not wish to continue further. Perhaps it would be useful if the Minister reflected in particular on the order-making powers of the Secretary of State, and the need for us to see at an early stage the type of offences that the Secretary of State feels would warrant the attachment of a financial penalty. However, I do not wish to press the amendment to a Division. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That this schedule be the Eleventh schedule to the Bill.
The second issue relates to proposed new section 66A(5), which sets the attendance condition for an offender at 20 hours. That is a significant period, and rather longer than might be the case in certain disposals within the court. It seems a little topsy-turvy that a conditional caution could involve a longer “sentence”—that is, a longer condition in terms of attendance—than would have been imposed by a court in similar circumstances. I wonder where the figure of 20 hours comes from and whether there is a justification for that.
The last point that I would like to raise relates to proposed new section 66F, which would make it impossible to apply a conditional discharge. It does not seem entirely sensible for the court not to have that discretion following the application of a youth conditional caution, because there may be circumstances where that is precisely the right disposal. We know that there is already a provision following a final warning, but in this instance it appears that there is merit in allowing the court at least to consider a conditional discharge when that is the most appropriate disposal. It may well not be; it may be that if somebody has gone through the conditional caution and commits a further offence, they have reached the end of the road and the court should apply a different sanction, but I cannot see why it should not be allowed to consider a conditional discharge. I invite the Minister to satisfy me, if he can, on those three points.
Mr. Burrowes: Concern was voiced earlier in the debate about the range of conditions that are imposed as part of conditional cautions and whether there will be some regulation of the range that can be imposed by the police and the CPS. There is also concern about the number of conditional cautions that a young offender can have before a court disposal becomes necessary, and whether young offenders would be given any guidance on that. Perhaps most significantly, there is no reference in the schedule and the related clauses to the role of the youth offending team or whether the guidance will make explicit the need for a youth offending team to implement properly the conditions as part of the caution.
I make a final plea for the Minister to respond on the type of offences where the Secretary of State would prescribe it necessary to attach a financial penalty, given that that is to be done by way of an order-making power.
On the points that the hon. Member for Somerton and Frome raised, those matters are not at variance with warnings under the Crime and Disorder Act. Youth conditional cautions are not available for adults. The conditional discharge issue that he mentioned reflects the position on warnings under the Act. Young people who receive a youth conditional caution should not be in a better position than a person who has received a warning, as they will have already had one or two slaps on the wrist and should not get another.
The figure of 20 hours that the hon. Gentleman mentioned is a maximum. Fewer hours may be given, but it is important that the figure is in line with other maximum hours on activities that can be imposed under the Bill with conditional discharge. I hope that that helps him. [Interruption.] If the hon. Gentleman wishes, I will look over what has been said and write to him regarding any points that have not been addressed. The main points are that the 20 hours figure is a maximum and that the conditional discharge measures are reflected in the Crime and Disorder Act. The figure is not at variance with those in the Act for warnings which are not available for adults. I shall reflect on what has been said and, if need be, I shall drop him a note to clarify matters.
Question put and agreed to.
Schedule 11 agreed to.
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