The
Committee consisted of the following
Members:
Ainsworth,
Mr. Peter
(East Surrey)
(Con)
Bain,
Mr. William
(Glasgow, North-East)
(Lab)
Bellingham,
Mr. Henry
(North-West Norfolk)
(Con)
Hill,
Keith
(Streatham)
(Lab)
Holmes,
Paul
(Chesterfield)
(LD)
Howarth,
David
(Cambridge)
(LD)
Ingram,
Mr. Adam
(East Kilbride, Strathaven and Lesmahagow)
(Lab)
Jones,
Helen
(Vice-Chamberlain of Her Majesty's
Household)Main,
Anne
(St. Albans)
(Con)
Mitchell,
Mr. Austin
(Great Grimsby)
(Lab)
Seabeck,
Alison
(Plymouth, Devonport)
(Lab)
Smith,
Jacqui
(Redditch)
(Lab)
Todd,
Mr. Mark
(South Derbyshire)
(Lab)
Tredinnick,
David
(Bosworth)
(Con)
Ward,
Claire
(Parliamentary Under-Secretary of State for
Justice)
Wright,
Jeremy
(Rugby and Kenilworth)
(Con)
Jyoti Chandola, Committee
Clerk
attended the
Committee
Seventh
Delegated Legislation
Committee
Wednesday 20
January
2010
[Joan
Walley in the
Chair]
Criminal
Justice Act 2003 (Conditional Cautions: Financial Penalties) Order
2009
2.30
pm
Mr.
Henry Bellingham (North-West Norfolk) (Con): I beg to
move,
That
the Committee has considered the Criminal Justice Act 2003
(Conditional Cautions: Financial Penalties) Order 2009
(S.I., 2009, No.
2773).
It
is a pleasure to serve under your chairmanship, Ms Walley. I
should first declare an interest as a former practising criminal
barrister who dealt with a number of cases involving low-level
offences. So I have some experience of the offences we are dealing
with. The bad news is that we want to ask the Minister some questions.
The good news is that we are not going to vote against the statutory
instrument. That is not an excuse for Opposition Members to leave the
Committee.
Jacqui
Smith (Redditch) (Lab): You are the
Opposition.
Mr.
Bellingham: There are some important questions and we also
want to hear what the Minister has to say. It is a pity that this
important SI, which is an important extension to the way in which legal
matters are dealt with, was the subject of a negative resolution. It is
a great pity that it was not going to be discussed willingly by the
Government and that it was down to the Opposition parties to ensure
that there was a debate in
Committee.
The
Ministry of Justice has obviously been moving over a period of time
towards fixed penalty notices and conditional cautions. The SI adds
financial penalties to the existing regime but can attach
rehabilitation and other conditions to a conditional caution. I have
been concerned for some time that we are dumbing down justice and
moving away from justice being seen to be done in the courts in the
communities, where people are tried before their peers in a community
by local magistrates. It is important that we ensure that the
magistracy and the magistrates courts remain an important part of
criminal justice.
I should like
some confirmation from the Minister that the Government recognise the
crucial work that the magistracy do. After all, the magistrates courts
deal with 91 per cent of all cases and the lay magistracy deal with
something like 90 per cent. of those cases. Without those superb
volunteers we would not have a criminal justice system. It is pity that
we have seen a number of moves away from the court system to justice
being dealt with by police officers on the
streets.
I
can understand that there is an argument for having some of these
low-level offences dealt with on the spot in a summary way. But what
level of consultation took place with the magistracy? The Government
included the draft financial penalty order in the consultation paper
that was issued on 6 March 2007. What response
did they receive from the Magistrates Association on that and what was
its view on the draft code of practice for conditional cautioning? What
discussions has the Minister had with the Magistrates Association and
the Forum of Bench Chairmen about their concerns, which have been
voiced on many occasions, about the extent to which more and more cases
now are being dealt with outside the court
system?
The
magistrates are on record as saying that they understand fully that
there are occasions when minor offences should be dealt with in a
different way. But they also feel very strongly that the people deserve
the opportunity of seeing that justice is done properly if they are
accused of an offence. It may be a minor offence but it
could scar their character and record into the
future.
I
was not on the Committee when the Bill went through and I do not think
that the Minister was either. It was dealt with by other colleagues. An
amendment was made to provide that the offences for which a financial
penalty is available must be set out in an order approved by
Parliament. Can the Minister elaborate on that a little? There were
also to be a number of pilots running from November 2009. Those pilots
were going to be properly evaluated before a decision on national
implementation was made. Can she tell us something about those powers?
The Committee would like to know where they are taking place, how long
they will last and how they will be evaluated. Can she confirm that
there will be a thorough and comprehensive evaluation of those powers
before any further action is
taken?
Can
the Minister give us more information on the guidance that will be
provided on the level of the financial penalty and how it should apply?
As I understand it, there will be a standard penalty, but there will be
some flexibility in terms of what level of fine is given. Can she give
us some more information about the type of fines that will apply to
different types of offences under conditional cautions? Obviously the
fine limit will be £250 or one quarter of the fine available on
summary conviction, but that leaves quite some flexibility within that
spectrum.
Overall
we are not particularly happy with the way that the Government are
going. On the other hand, we fully appreciate the pressure that the
police and magistrates courts are under. We also fully understand that
when antisocial behaviour and low-level offences are taking place, it
is important that the police can act decisively and properly and can
enforce their presence and deal with such behaviour. We accept that
there is a role for fixed penalty notices and for conditional cautions,
but we have also made it clear that we feel the role for this is
limited and that the Government must explain their
case.
The
Government have to come to the House and put a strong case before
Opposition parties will give them carte blanche to push ahead with this
policy. I hope that the Minister will accept our constructive criticism
and accept the reasons why we wanted to have this proper debate this
afternoon. I hope she will answer those questions; if she does so
satisfactorily, although we will go on holding the Government to
account, we will support them in this area of criminal
justice.
2.38
pm
The
Parliamentary Under-Secretary of State for Justice (Claire
Ward): As always, it is a pleasure to serve under your
chairmanship, Ms Walley. The hon. Member for North-West Norfolk
probably should have added to his
declaration of interest that his constituency is one of the areas where
a pilot project will take place. I hope that he will have an
opportunity to see what happens in practice when we pass the
legislation.
The
financial penalty order is the last piece in the legislative
framework to allow financial penalties to be attached to a
conditional caution. We addressed Parliaments concerns about
the financial penalty condition during the passage of the Police and
Justice Act 2006, making a number of concessions, and the provisions
were approved. We agreed that the offences for which a financial
penalty could be attached to a conditional caution and the maximum
level of that penalty would be set out in a statutory instrument. That
is the order that we are debating today.
We said that
the list of offences would be drawn more tightly than the full list of
offences for which a conditional caution can be administered. The
financial penalty order specifies that financial penalty can be a
condition of a caution for most of the offences for which a conditional
caution can be administered, except for drug and prostitution offences,
as the key aim with those offences is rehabilitation.
We
considered excluding a wider range of summary offences, but we do not
believe that there is a logical framework for further exclusions and we
concluded that if all the criteria for offering a conditional caution
were met and the likely sentence at court were a small fine, a
financial penalty should be available to prosecutors.
We consulted
on the list of offences for which a financial penalty could be attached
to a conditional caution as part of the consultation on the revised
code of practice. There was only one comment on the list of offences
out of a total of 42 respondents. The proposed maximum financial
penalty as set out in primary legislation will be reduced from
£500 to £250 and any proposals to increase the maximum
financial penalty will require parliamentary approval and an
affirmative
resolution.
Prosecutors
discretion to set the level of the financial penalty will be
restricted. Supporting guidance for the operation of the scheme makes
it clear that, ordinarily, the standard penalty should be offered as
set out in the order. When, however, the Crown prosecutor is satisfied
that there is substantial mitigation for the commission of the offence
or the offender is in receipt of state benefits, such as income support
or jobseekers allowance, as their main or only source of
income, a mitigated penalty as set out in the guidance may be
imposed
instead.
We
have consulted widely on the revised code of practice, which allows
financial penalties to be attached to a conditional caution. The code
was debated and approved by the House of Lords on Thursday 15 October
and by the Commons Delegated Legislation Committee on Tuesday 20
October and was approved formally by the House on 21 October. We will
be implementing the financial penalty condition initially in only five
specified areas: Cambridgeshire, Hampshire, Humberside, Merseyside and
Norfolk. We have made it clear that we will monitor its use in those
areas.
Mr.
Bellingham: Will the pilots be on a county-wide or
force-wide basis or will they be restricted to various local area
commands?
Claire
Ward: They will be with the police forces for the areas.
How they wish to operate is a matter for the police force. The
agreement is based on pilots with a
force. The provisions have already commenced in the areas, but are not
yet in
use.
Mr.
Austin Mitchell (Great Grimsby) (Lab): The mention of
Humberside has brought me to my feet. I represent a comparatively poor
and deprived area with a high level of unemployment. Will the
additional penalties be administered, as our previous leader suggested,
by dragging people to a cash machine? Most people in Humberside do not
carry American Express, however nicely it would do. How will the new
penalties be
collected?
Claire
Ward: My hon. Friend has to think about the context in
which the penalty will be imposed. The caution is conditional when
someone has already been detained on the grounds of an offence, which
the police have decided comes within the category suitable for offering
a conditional caution. The offender has accepted the conditional
caution and recognises as part of that conditional caution that, if
they fail to agree and abide by the terms of the conditions, the
prosecution will instead proceed. On that basis, the penalty will
become a fine that they are expected to pay in those circumstances, the
same as any other financial penalty that someone might receive, such as
a fixed penalty
notice.
Mr.
Mitchell: In discussions, the police force in Humberside
raised a couple of problems that I wish to put to my hon. Friend the
Minister. I am not particularly well informed on how the process will
operate, but what will be the effect on police records of reported
crime and crimes solved of a procedure that goes through such channels?
Secondly, will it open up any opportunities for something that the
Humberside force is certainly keen to implement in Grimsbythe
use of restorative justice to bring together an offender and the victim
of crime to confront each other? Will the order have an effect on the
ability to use that
procedure?
Claire
Ward: Well, the number of conditional cautions that are
applied by a police force are still part of the statistics that are
collected and published. I cannot see any reason why that would be
changed. As for restorative justice, there are opportunities for
restorative justice. Indeed, the conditions that the Crown Prosecution
Service and the police may impose might be some form of compensation or
other restorative work, but of course that has to be agreed by the
offender as well as the victim. I shall continue discussing the other
issues raised.
In addition,
the financial penalty order for the youth conditional caution, which
was laid at the same time as the financial penalty order for the adult
conditional caution, has not been prayed against. Annulling the
financial penalty order for the adult conditional caution would, in
effect, create a regime that was tougher on young offenders than it was
on adults. I therefore welcome the fact that the Opposition have
decided not to vote against the order
today.
Mr.
Bellingham: On the point about affirmative and negative
resolution, I was trying to get the point across that these are
interesting areas of criminal justice and we are constantly looking
into new territory, so the Opposition should not have to bring the
Government to a Committee; the Government should come forward anyway
and explain what they are doing. For that reason, is there a way to
make the procedure for all these SIs affirmative rather than negative
in future?
Claire
Ward: We have had an opportunity to discuss the principle
of conditional cautions in both primary and secondary legislation. The
important work that an Opposition party does is to hold the Government
to account and the opportunities to do so present themselves through
parliamentary procedures and negative resolution procedures. No doubt
the hon. Gentleman and his colleagues will continue to hold the
Government to account at every
opportunity.
May I refer
to some points that the hon. Gentleman raised in his opening remarks?
He asked about the involvement of the Magistrates Association. We have
regular and ongoing consultation with the Magistrates Association.
Magistrates play a very important part in the criminal justice system.
The fact that we have other forms of out-of-court disposals does not
mean that we are undermining magistrates and the important work that
they do, and we do not ignore the very important representations that
they make to
us.
The
Magistrates Association responded to the consultation exercise and made
it clear that it was against the conditional cautions. Also, it was the
only consultee that made any objection to the offences listed in the
financial penalty order. Obviously, the Government must take into
account much wider views, and although we listened carefully to the
views expressed by the Magistrates Association, we believed that this
was the right course of action to take, especially as this is a pilot
project in the five areas and we will evaluate it. The hon. Gentleman
asked how long it would last; it will be a six-month project. We will
look carefully at the evidence and the analysis before deciding what
further action to take.
It is
important to bear in mind that given some of the concerns that have
been expressed, my right hon. Friend the Justice Secretary announced a
review of out-of court disposals, which is ongoing. They nevertheless
remain an important part of the work that we do to ensure that justice
is done but also seen to be done. I encourage the hon. Gentleman and
his colleagues to look at the important work that is going on in that
fieldand not only out-of court disposals. The Government have
introduced and extended many aspects of community work, such as
community paybackby those wearing fluorescent
jacketsand community cashback.
For the
reasons I have outlined, I hope that the Committee will agree that the
order should not be annulled.
2.49
pm
Paul
Holmes (Chesterfield) (LD): I too have questions for the
Minister; a couple overlap with things that have been said and some
raise completely new points. Conditional cautions were introduced in
2003 and the Liberal Democrats supported them as a means to divert
people away from the courts in a way that would encourage
rehabilitation and reparation, to avoid reoffending by those guilty of
minor offences, rather than their being sucked straight into the court
system.
The
problem with the order is that, in implementing changes to the 2006
Act, it fundamentally alters the nature of conditional cautions. If
they were about rehabilitation and the reduction of offending, we now
seem to be shifting the emphasis to one of punishment by imposing
fines. Originally, conditional cautions were for minor offences, but
potentially serious offences such as theft and fraud, which are
included in the order,
could be covered. Will the Minister explain the shift from an emphasis
on rehabilitation, preventing reoffending and minor offences, to one on
punishment, and on possibly including more serious offences, which I
shall elaborate on in a
moment?
Shifting
the focus towards punishment and away from rehabilitation creates some
inconsistency and confusion in out-of-court disposals and undermines
the original purpose of cautions. Some confusion and incoherence is
developing in the out-of-court disposal systems. We have antisocial
behaviour orders, penalty notices for disorder, conditional cautions,
and now the addition of a financial penalty. PNDs, ASBOs and cautions
have all been justified as necessary to tackle antisocial behaviour on
the spot, speed up the process of justice and avoid going the whole hog
into court proceedings, but there is a lack of coherence.
Liberty has
said:
Cautions
are supposed to be an alternative to entering the criminal justice
process, a non-punitive means of encouraging a person not to
re-offend.
It
also says, however, that there is
now
a
real danger that conditional cautions will be used as a short-cut to
punishment
instead
of there being an emphasis on
rehabilitation.
Punitive
conditions blur the distinction between the prosecutor and the
judiciary. Essentially, the order means that a punitive penalty is now
attached to a caution and the power to punish is taken from the courts
and given to police and prosecutors. The Magistrates Association has
expressed concern about precisely
that:
A
democratic legal system ensures that an independent tribunalthe
judiciaryshould sentence and impose punishment, thus preventing
bias from prosecutorial
authorities,
who
should not be judge and jury, so to
speak.
I
hope that the Minister can address the concern about the potential for
serious offences with much higher maximum fines ending up getting much
smaller fines than if they went to court. For example, under schedule 2
an offence that carries a maximum fine of £5,000 on level 5
could be disposed of with a conditional caution instead, with a maximum
fine of £150. The offences for theft listed in schedule 1 also
ordinarily attract a level 5 fine. That means that the maximum possible
fine issued with a conditional caution would be 3 per cent. of the
maximum possible fine if the same serious offence had gone to a
magistrates court. It could almost be argued that the Government were
going soft on serious offences to save court time and money. I thought
that the Minister would like that, in view of our discussions last
week.
On the other
hand, for less serious offences, which would ordinarily attract a
maximum level 1 fine of £200 in the magistrates court, the
maximum fine attached to a caution under schedule 2 would be
£50. That is about 25 per cent. of the maximum possible fine in
a magistrates court. The order seems to set up a system in which minor
offences could be penalised more harshly than more serious ones, in
terms of the proportion of the fine that would be issued in a
magistrates court represented by the fine through a caution with
financial
penalty.
The
Government have said that the cautions will be used only for minor
offences, but some of the offences listed could be serious. Theft,
fraud and serious criminal damage, for example, all rate up to a level
5 in a magistrates
court. Those offences are potentially very serious. To give a caution in
response to such an offence would undermine the initial goal of
introducing conditional cautions for minor offences. Will the Minister
assure us that the conditional cautions and financial penalties will be
used only for the most minor level of offences, even though schedule 2
seems to imply that much higher-level offences could be brought in
under the order? What guidelines will the Government provide to those
issuing conditional cautions to ensure that a caution and the attached
financial penalty is an appropriate response to the level of offence?
Will there be a sliding scale of penalty determined according to the
level of seriousness of the
offence?
Another
issue that the Magistrates Association has expressed concern about is
whether the offenders means will be taken into account when
financial penalties are issued. It has cropped up in other
casesfixed penalty notices and so on. When a magistrates court
assesses the income of the offender, will there be a fine that is
payable by that person? That does not always happen in cases such as
fixed penalty notice offences. As a result, up to 50 per cent. of such
fines do not get paid. Then the person is dragged into court and the
courts time, far from having been saved by this quick method,
is then wasted, because they have to chase up as many as 50 per cent.
of the people involved who have not paid the fines, partly because an
unrealistic level of fine has been imposed. Can the Minister assure us
that the offenders ability to pay will be taken into account
when the financial penalty is attached to a conditional caution, and
how exactly will the offenders means be assessed for those
purposes if we are operating here outside the more elaborate court
procedurea tried and tested court
procedure?
Finally,
I want to address the proportionate use of conditional cautions and the
financial penalties, which the Minister touched on in her comments a
few moments ago. The Magistrates Association believes that conditional
cautions, as they have existed for the past few years, are being used
in a non-uniform and inappropriate way across the country. The
association says it found evidence of considerable inappropriate use of
out-of-court disposals, because there is no formal monitoring process
regarding proportionality of disposal to the offence. Given the
Ministers comments on monitoring in the five forthcoming
pilots, how will the Government address the Magistrates
Associations concerns about the lack of a formal process? Can
the Government guarantee that the resulting financial penalties will be
implemented in a consistent and coherent fashion? Will the use of
financial penalties be monitored to ensure that they are proportionate
to the level of seriousness of the offence? And will the Government
monitor reoffending rates of the people in the pilots who have the
conditional cautions with a financial penalty imposed, to assess how
effective they are compared with conditional cautions without a
financial penalty
attached?
2.58
pm