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.
2
pm
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.
The purpose of
the amendments is to draw out from the Minister how he sees the
pre-court disposal process working out in practice and how the custody
officer and a Crown Prosecution Service lawyer would work
out the appropriate level of fine. In a magistrates or youth court
setting, will there be a means test? Will the suitability of the young
defendant be assessed to see whether he can pay a financial penalty?
Will that process take place with the condition of payment of a
financial penalty? For those reasons, I ask the Minister to consider
the amendments seriously and to say whether it is indeed appropriate to
have a financial penalty attached to
conditions.
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.
Mr.
Heath:
I would like to raise three
curiosities relating to schedule 11 that have not been covered
previously. The first relates to new section 66A of the Crime and
Disorder Act 1998, inserted by paragraph 3 of the schedule. Under the
first part of that new section, the youth conditional caution cannot be
given to an
offender who has previously been convicted of an offence. That is at
variance with the adult conditional caution which can be acquired at
any stage in a person’s career. There must be a reason why the
Government distinguish between the two, and I would be interested to
know what that may be. Incidentally, it introduces the same sort of
distinction as I referred to earlier between a 15-year-old and a
16-year-old, only in this case it would be a distinction between a
17-year-old and an 18-year-old. The 18-year-old with an identical
history could have an adult conditional caution but the 17-year-old
would be unable to have a youth conditional caution. I am interested to
know the reason for that anomaly.
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.
Mr.
Hanson:
First, I assure the hon. Member for Enfield,
Southgate that it will be essential for youth offending teams to be
involved because we are looking
at how we can prevent further misbehaviour by young offenders who have
been given a youth conditional caution. The youth offending team will
be central to that in terms of what they can do with both the young
offender and, potentially, with individuals in the extended
family.
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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