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Session 2008 - 09
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Public Bill Committee Debates



The Committee consisted of the following Members:

Chairman: Ann Winterton
Blunkett, Mr. David (Sheffield, Brightside) (Lab)
Burrowes, Mr. David (Enfield, Southgate) (Con)
Challen, Colin (Morley and Rothwell) (Lab)
Field, Mr. Mark (Cities of London and Westminster) (Con)
Fisher, Mark (Stoke-on-Trent, Central) (Lab)
Hall, Mr. Mike (Weaver Vale) (Lab)
Holmes, Paul (Chesterfield) (LD)
Howarth, David (Cambridge) (LD)
Jones, Helen (Vice-Chamberlain of Her Majesty's Household)
Main, Anne (St. Albans) (Con)
Moss, Mr. Malcolm (North-East Cambridgeshire) (Con)
Murphy, Mr. Denis (Wansbeck) (Lab)
Ryan, Joan (Enfield, North) (Lab)
Ward, Claire (Parliamentary Under-Secretary of State for Justice)
Winnick, Mr. David (Walsall, North) (Lab)
Wright, Jeremy (Rugby and Kenilworth) (Con)
Gosia McBride, Joanna Dodd, Committee Clerks
† attended the Committee

Second Delegated Legislation Committee

Tuesday 20 October 2009

[Ann Winterton in the Chair]

Draft Crime and Disorder Act 1998 (Youth Conditional Cautions: Code of Practice) Order 2009
4.30 pm
The Parliamentary Under-Secretary of State for Justice (Claire Ward): I beg to move,
That the Committee has considered the draft Crime and Disorder Act 1998 (Youth Conditional Cautions: Code of Practice) Order 2009.
The Chairman: With this it will be convenient to discuss the draft Criminal Justice Act 2003 (Conditional Cautions: Code of Practice) Order 2009.
Claire Ward: The draft Criminal Justice Act 2003 (Conditional Cautions: Code of Practice) Order introduces a revised code of practice for conditional cautioning; the draft Crime and Disorder Act 1998 (Youth Conditional Cautions: Code of Practice) Order introduces a code of practice for the youth conditional caution. The codes of practice cannot be implemented until the draft orders that introduce them have been debated and approved by both Houses. I asked for the orders to be debated together because of the similarities between the two schemes. I shall speak first about the conditional cautioning scheme for adults.
Part 3 of the Criminal Justice Act 2003 allows the Crown Prosecution Service and other specified prosecuting authorities to administer a conditional caution in certain circumstances. The basic requirements are that the offender is an adult, that he admits the offence and that there is sufficient evidence to prosecute. It is also necessary that the offender should agree to being cautioned. If it is possible to set appropriate conditions, the public interest may be met more effectively by the offender carrying them out than by being prosecuted. If the offender fails to comply with the conditions, he may be prosecuted for the original offence.
The conditional cautioning scheme has been available throughout England and Wales since March 2008. It is currently operating under a code of practice that was approved by Parliament in 2004. Amendments to the Criminal Justice Act 2003 made under the Police and Justice Act 2006 to allow for punitive conditions to be attached to a conditional caution mean that we need to update the code of practice. We have also taken the opportunity to make further amendments in the light of operating experience, and to improve the structure and readability of the code.
The Secretary of State is required to publish the code in draft; that was done on 6 March 2007. Public consultation took place between then and 29 May 2007, and 42 responses were received. Further revisions to the draft code of practice were made in the light of those responses. The amended draft was agreed by the Justice Secretary, the Home Secretary and the Attorney-General, and laid before Parliament on 8 July 2009.
The key issues are the extension of the conditional cautioning scheme to allow for a punitive condition—specifically, a financial penalty—to be attached to a caution; guidance on the power of arrest and detention, which has been available since 29 June 2007; the removal of the requirement for an admission to be made in a Police and Criminal Evidence Act interview before a conditional caution can be administered; and additional safeguards to ensure that such a disposal is used appropriately.
The Committee will of course have noted the delay between the consultation exercise and the laying before Parliament of the draft order that introduces the code. Following the machinery of Government changes in 2007, we decided to delay the introduction of a revised code of practice until the national roll-out of the conditional caution, which was completed in March 2008. The subsequent timetable took account of our decision to test the financial penalty for the adult conditional caution at the same time and in the same areas as the new youth conditional caution.
If the revised code is approved by Parliament, it will be implemented across England and Wales next month. However, the key new element, that of the financial penalty condition, will be available in only five specified pilot areas—Cambridgeshire, Hampshire, Humberside, Merseyside and Norfolk—as set out in the relevant commencement orders under section 17 of the Police and Justice Act 2006. A decision on national implementation will be taken following a review of the pilot.
Section 48 of the Criminal Justice and Immigration Act 2008 extended the use of conditional cautions to young people aged 10 to 17 by amending the Crime and Disorder Act 1998. The Government agreed during the passage through Parliament of the 2008 Act that the youth conditional caution would be introduced in stages, beginning with its use for 16 to 17-year-olds.
The youth conditional caution has been designed to operate in a way that is consistent with the adult scheme, but there are, by necessity, a number of differences. As with other out-of-court disposals for young people, a youth conditional caution will not be available to a young person who has previously been convicted of an offence. There is no such restriction for the adult scheme. The youth code sets out the role of the youth offending team in advising on the appropriateness of a conditional caution and overseeing the completion of the conditions. There is no equivalent of the code for the adult conditional caution. Punitive unpaid work is available for the youth conditional caution as the facility for that is established, and it allows a punitive condition to be put in place and a conditional caution offered in the likely event that the young person is unable to pay a financial penalty. The adult code allows for a condition to be attached to a caution, requiring the offender to pay for the course he is attending, but a young offender cannot be required to meet the costs of the course he is attending as a condition of a caution.
The Secretary of State is required to publish the code in draft, and that was done on 2 March 2009. Public consultation took place between that date and 25 May. Thirty-two responses were received, and as a result several detailed amendments were made to the code to remove perceived ambiguities. The amended draft was agreed by the Justice Secretary, the Secretary of State for Children, Schools and Families and the Attorney-General and laid before Parliament on 8 July.
If the code is approved by Parliament, it will be implemented as a pilot in the same areas as the financial penalty condition for adults—namely, Hampshire, Cambridgeshire, Humberside, Merseyside and Norfolk. Following a review of the pilot, a decision on national implementation will be taken. I ask the Committee to support the orders bringing the codes of practice into force.
4.37 pm
Mr. David Burrowes (Enfield, Southgate) (Con): It is a pleasure to serve under your chairmanship, Lady Winterton, in considering the two orders on conditional cautions, which I wish to discuss together. Perhaps I shall start where there is agreement—it is always a good place to start. Cautions and, to a certain extent, conditional cautions, certainly have a role in terms of diversion from prosecution. Across the Committee, we no doubt would all wish to ensure that minor offences that can be dealt with appropriately in an out-of-court disposal should be dealt with effectively and as soon as possible so that adults and young people are diverted away from prosecution. Cautions can certainly be an effective way to deal with reparation and restorative programmes, particularly for the immediate benefit of the victim.
The Minister said the Government proceeded cautiously after the consultation in 2007 and have since sought to evaluate the pilots. I ask her to look at reoffending rates, which are a determining factor, and at whether conditional cautions for adults have successfully reduced reoffending. The main issue that will no doubt concern the Committee, and which has exercised the Committee in the other place, is the particular revision in the codes of practice for conditional cautioning, which will in effect allow a punitive condition to be attached, specifically a financial penalty. The Magistrates Association has objected to that provision, and given its relevance in the criminal justice system, it is important to take note of its objections and ensure that the Minister is able to respond to them. The association has a general objection to the inappropriate imposition of cautions for a range of serious and indictable offences and seeks reassurance from the Committee that the particular offences that have been attributed to conditional cautions in the pilot areas, as well as those proposed in the two orders before us today, will not be used for serious and indictable offences.
The Magistrates Association is also concerned, no doubt particularly in relation to conditional cautions, that out-of-court disposals are generally not open to scrutiny or analysis by the public and/or media, whereas justice by the magistrates themselves in court is seen to be done. That important principle is seen to be at risk from out-of-court disposals. We want to ensure that there is monitoring for the conditional cautions. The conclusion of the letter that was sent out to a number of hon. Members mentioned the lack of any formal monitoring process with regard to the proportionality of disposals for the offence. Will the Minister consider whether there can be monitoring and reporting in the pilot areas so that magistrates and the public can see the effectiveness of the disposals?
The magistrates raised the concern that out-of-court disposals do not take account of the ability of the offender to pay. I imagine that the Minister will rebut that quickly by saying that there is provision within the codes of practice that enables the means of the offender to be taken into account. Perhaps we will deal with that a little later. The magistrates also raise the concern that the compensation cannot be awarded to a victim with a caution. Again, the Minister might be able to reassure the Magistrates Association in relation to the compensatory element of conditional cautions.
When debating the Police and Justice Act 2006 and the Criminal Justice and Immigration Act 2008, which form the legislative architecture behind the orders, my party raised objections and concerns similar to those of the Magistrates Association. There are concerns of principle and practice. In the original House debate, the following principle was quoted from the Magistrates Association:
“A democratic legal system ensures that an independent tribunal—the judiciary—should sentence and impose punishment, thus preventing bias from prosecutorial authorities”.
That is the purest principle that it wishes to uphold. If the plan is to move away from that principle, we must be convinced that there are good reasons for doing so.
That is the situation with the orders. They legislate for a condition attached to the caution, which is essentially a punitive penalty. In effect, it will put punishment in the hands of police and prosecutors, rather than the courts. Currently, when a court case gets to the point of conviction and sentencing, the prosecutor removes himself from the process. The orders will put sentencing in the hands of police and prosecutors. The mention of court reminds me that I should declare an interest as a relatively infrequently practising solicitor. I will no doubt be affected by the orders.
On practice, the concern was raised during the primary legislation debates that we are in effect creating a two-tier system in which those with means will readily accept a caution and those without means will not, which will lead to prosecution. There is an assurance in the codes of practice, and we have been given the assurance in previous debates, that means will be taken into account and that there will be a different level for those of limited means. It is not clear how that will work in practice in the police station. In magistrates courts, a form is given to the offender that sets out their means clearly. They can make representations about their means, often with the benefit of representation. The question is whether such matters will be worked out properly in the heat of the day at the custody officer’s counter. It is also not clear whether there will be an appropriate sliding scale for the financial penalty.
We have discussed whether we should agree with the punitive element of conditional cautions in a previous debate and I will not repeat that. When the primary legislation passed through the House of Lords, the Government accepted Conservative amendments that mitigated our objections of principle and practice. Those amendments form the basis of the orders. The maximum amount of any required penalty has been reduced from £500 to £250 and the offences are specified in legislation.
Mr. David Winnick (Walsall, North) (Lab): I am listening with great care. Do I understand that the hon. Gentleman supports the proposals?
Mr. Burrowes: The hon. Gentleman is keen to find out my view. If he is patient for a bit longer, he will see that although I am a sceptic, I am not necessarily willing to oppose this particular order. It is important to see whether the intention of the Solicitor-General in the debate of the Police and Justice Act 2006 is properly worked out, so we must scrutinise the detail in this particular order. An important requirement of the legislation was that the discretion to set a lower financial penalty than would otherwise be attracted by the offence in question was properly reflective of the offender’s ability to pay. The Minister must assure us that that has been worked out in this order.
Finally, the amendments were made subject to the affirmative resolution procedure to ensure that any proposed changes, including the number of maximum hours that an offender would be required to attend a specified place and the amount of the maximum financial penalty, would come back to this House. Although that is not the issue today, it is important to get some reassurance from the Minister that there is no intention any time soon for the Government to come back and present an order that would increase the maximum limit.
The position in relation to the order is relevant because we need to look at the practical effects of it. Although I do not want to detain hon. Members too much longer and put before the Committee an additional order beyond the two that we already have, I have to say that order 2009 No. 2773 is very much attached to these two orders. It prescribes the particular offences and description of offences that are subject to a negative resolution and cannot be properly considered by this Committee, and I would not seek for that to happen. Nevertheless, what it does do is give a practical relevance to these orders. It means that the offences for which a financial penalty would be attached are ones such as a theft, removal of an article from a place open to the public, abstracting electricity, false accounting, handling stolen goods, burglary or theft, destroying or damaging property, threatening to destroy or damage property, possessing articles of intent to destroy, making off without payment, forgery, fraudulent use of a vehicle licence, fraud, possession of articles for use in fraud, making, adopting or supplying an article for use in fraud, and finally obtaining services dishonestly.
The reason for mentioning such offences is not to challenge them within this Committee but to make the point that those are offences that may be minor but could well be very serious. Let me take just three of the offences. Theft, handling stolen goods and obtaining services by deception could be very serious offences. Although the Government have, throughout their previous debates, sought to reassure the House that offences that are the subject of conditional cautions will be minor offences, it is important, when seeing the list of prescribed offences, that the Minister assures us that guidelines will be in place to ensure that in those cases, the offences will be very much on the minor scale of things and that there will limits on the value of property. It will ensure that we deal only with the minor offences.
The Minister will no doubt wish to rebut the concerns about conditional cautions having a punitive penalty by saying that offenders always have an option to go to court. In effect, the offer is voluntary and the offender can reject it. We all know what happens in practice. The pressure to get out of the police station as quickly as possible and not to run the risk of conviction, sentence and court will lead to a tempting offer effectively to cut and run. It is important that proper safeguards are in place and these codes of practice seek to make them, but questions remain over whether they should go further. In particular, the practical implication of this code of practice is that it will allow the police to avoid in certain circumstances the need for an interview in order to obtain an admission to an offence so that there will be the opportunity to deal in a quicker way with conditional cautions. That is probably appropriate. There is a logic to it in certain circumstances in which the police already have sufficient evidence. The codes of practice in detention mean that they should move to charge straight away and not interview. The reality, however, is that if someone who is to be subject to the conditional caution procedure seeks legal advice, they will not, under the legal aid regulations, be able to obtain advice on whether it is appropriate for them to accept a conditional caution from a solicitor in person. Instead, they would have to rely on telephone advice, which would be fairly limited. Has consideration been given to the need to ensure that there is appropriate guidance and regulation regarding the legal aid process and the duty solicitor or other person who receives the phone call when a person is liable to receive a conditional caution? Will they have the opportunity to see a solicitor in person to receive advice? A solicitor might have to go through the different ingredients of an offence that would not come to light in a police station interview.
The guidance must also take proper account of the practical implications of a conditional caution. The impact of a caution, particularly on a young person, can be severe: conditional cautions would come out in Criminal Records Bureau checks and enhanced disclosures. Will guidance be given to ensure that proper information is given to young people so that they know the practical implications of the conditional caution and what they are getting themselves into when they accept a caution?
In conclusion, I will answer the question that was asked earlier about whether the Conservatives are opposed to the measures. We are sceptics, but not opponents, and our scepticism will continue. One has only to go back to when the then Minister for Policing, Security and Community Safety, the right hon. Member for Salford (Hazel Blears), conceded that punitive cautions were a radical departure from the law. Her justification for what we are dealing with today was:
“The legal system is complicated, time consuming and sometimes bureaucratic”.——[Official Report, Police and Justice Public Bill Committee, 23 March 2006; c. 165.]
Practitioners and others from outside the courts will confirm that that is the case, but that is not a justification for proceeding with such an order, so we will maintain our scepticism. We want to ensure that this order is not simply another part of the Government’s arsenal in a drive for efficient administration at the expense of efficient justice.
4.52 pm
The code does not address our concerns about the need to monitor the use of conditional cautions or the need to specify what is a reasonable length of time to detain someone under the new powers. The youth conditional caution code of practice is new and is designed to facilitate five pilots for 16 to 17-year-olds. We are concerned about the extension of these disposals to children, and Liberty has echoed that concern, saying that it could be a “short cut to punishment”. The introduction of fines and punitive conditions is, if anything, more concerning in this case. It is particularly important to ensure that young people understand and give informed consent before accepting a caution and the conditions that will result from that.
Now that I have made those general points, let me ask the Minister about three particular points, the first of which is the length of detention. When the 2006 Act was being considered, concerns were expressed about the absence of a time limit on the new police power of detention for breach of conditions. The responding Minister said that, generally, one or two hours should be sufficient, but refused to include any safeguard against excessive detention in the Bill. We might then have expected to find, in the new code of practice, some definition of what that acceptable period of detention was or should be, but the code seems to be silent on that. Will the Minister respond, saying what that acceptable period should be?
When the 2006 Act was passed, my hon. Friend the Member for Hornsey and Wood Green (Lynne Featherstone) requested that there be monitoring of how the conditions to a caution were applied in practice. When the orders were discussed last week in the other place, Lord Thomas of Gresford reiterated those concerns about whether monitoring was taking place and what its results showed. The Magistrates Association raised the same concerns in the letters that it sent to hon. Members, saying that it believes it has found evidence of a considerable inappropriate use of the cautions and that, because there is no formal monitoring process, there therefore seems to be no formal recognition of that from the Government.
In response, Lord Bach said last week on behalf of the Government:
“I understand that point. There should be parity in how these cautions are implemented and there is no reason to believe that there is not”,
but he also said,
“I do not have information but will write to all those who have spoken”—[Official Report, House of Lords, 15 October 2009; Vol. 713, c. 362.]
about this.
Since it is only a few days after that—and in light of the concerns that were raised three years ago—will the Minister respond particularly on what monitoring has taken place, whether it is showing any consistency in the way that the powers are used and whether there is any abuse of the powers?
Finally, on the youth specialist prosecutors, the youth code specifies that youth specialist prosecutors should be used wherever possible. That is welcome, but can the Minister clarify how many such youth prosecutors are in place and how well resourced and trained they are? If the pilots are successful and the scheme is rolled out nationally, do the Government have plans or commitments to provide additional resources to specialist youth prosecutors?
I should like the Minister to deal with three particular points. First, what are the acceptable periods of detention for breach of conditions? Secondly, what information is there, from monitoring, on how the conditions are being implemented, and what uniformity is there on that? Thirdly, how many youth specialist prosecutors are in place and how well trained and resourced are they?
4.57 pm
 
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