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Session 2009 - 10
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Delegated Legislation Committee Debates



The Committee consisted of the following Members:

Chairman: Joan Walley
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 Parliament’s 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 jobseeker’s 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 Grimsby—the 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 field—and not only out-of court disposals. The Government have introduced and extended many aspects of community work, such as community payback—by those wearing fluorescent jackets—and 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 tribunal—the judiciary—should 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.
Another issue that the Magistrates Association has expressed concern about is whether the offender’s means will be taken into account when financial penalties are issued. It has cropped up in other cases—fixed 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 offender’s ability to pay will be taken into account when the financial penalty is attached to a conditional caution, and how exactly will the offender’s means be assessed for those purposes if we are operating here outside the more elaborate court procedure—a 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 Minister’s comments on monitoring in the five forthcoming pilots, how will the Government address the Magistrates Association’s 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
 
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