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6 July 2006 : Column 367
Baroness Harris of Richmond: We on these Benches support the amendment.
Lord Goldsmith: I was looking quizzically at the noble Baroness simply because I wanted to know what she was reading from. That is not intended in any sense as a dismissive remark. I was just not sure which document and section she had in mind. She said Section 22, but I am not sure that I can find it.
Baroness Anelay of St Johns: I apologise. I had just asked my Whip to clarify a different matter—not this one—which concerned me. No discourtesy was intended to the noble and learned Lord.
The note which I have is from a briefing given in another place. It is guidance issued by the Secretary of State under the Criminal Justice Act 2003, Sections 22 to 27, which was obtained from the Home Office website some while ago. I did not check the website myself but it was quoted in another place. Perhaps that will be of assistance.
Lord Goldsmith: The noble Baroness was very generous in what she said at the start. I intended no hint of criticism at all; I was just trying to find the section.
On the substance of the amendment, as I understood it, the noble Baroness made the point that the code of practice states that if the offender does not accept the conditions, then he will be prosecuted—not that there is anything in the code that for one moment suggests that you should not consider the offender’s resources in determining whether it would be appropriate to impose a condition. Indeed, as there is currently not a power to impose a fine, that issue does not arise.
Let me be very clear: there is absolutely no question of our wanting to create one law for the rich and one law for the poor. From this side of the Committee, if I may say so, we certainly would not want to do anything of the sort. Prosecutors will have to take into account a range of factors in determining what conditions it is appropriate to impose, and that will be applied to everyone. But the overriding requirement will be that the conditions are proportionate, achievable and appropriate to the offence and the offender. Plainly, if an unduly high financial penalty were proposed for an offender who was not in a position to meet it, that would mean that the condition was neither achievable nor appropriate. I would not want to see one aspect of those considerations singled out in the Bill when the overriding question should be whether the conditions overall are proportionate, achievable and appropriate to the offence and the offender. On that basis, I cannot accept the amendments.
However, I take the opportunity to underline that this is not something that an offender is compelled to accept—a point that we have to keep in mind throughout this debate. The noble Baroness said—and it is important to underline it—that the offender has a choice of whether or not to accept the conditions that are proposed. If the offender does not choose to accept those conditions, the matter will go
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Lest there be any misunderstanding outside this Committee—I am sure that there is none within it—perhaps I may underline again that the current guidance to which the noble Baroness referred does not deal with financial penalties, because it has been written before such additions are possible. There is absolutely no question of that guidance saying, “Please, if you find a rich person, let them off with a fine, but if it is a poor person, send them to court”. That is absolutely not the case and I want to stamp on that suggestion as hard as I possibly can.
Baroness Anelay of St Johns: Certainly I cannot imagine that the noble and learned Lord would do anything other than that. We are dealing with two matters here. The noble and learned Lord is absolutely right to say that any existing guidance cannot deal with levels of punishment because punishment is the novelty of this Bill—and, as the Government have already said, a significant development. But the difficulty is that, unless we know what guidance there is from the Government to deal with the proper and fair allocation of financial punishment, we will not know how fair and effective this new provision will be. So we are in a cart and horse situation here. My concern is that we will be asked to agree to a provision when we do not know how people's ability to pay will be taken into account.
Furthermore, if the Government come forward with their guidance in time for us to consider it and they say, “This is how the CPS is going to be told to apply the offer of a conditional caution. This is how it is going to look at the finances of the person, and it will reflect the ways in which a magistrates’ court operates and takes things into account”, they know full well that we are likely to come back and say, “Ah, but of course the Government are trying to supersede the role of a court”, and they could find themselves in a cleft stick situation. The noble and learned Lord shakes his head, but there is a fundamental question here of how far courts’ functions could be encroached upon.
Of course, I am delighted that the noble and learned Lord has made it clear that there will be guidance to ensure that the imposition of a fine will be proportionate. Underlying it all, the difficulty is that if there is not a proper way of judging what the financial penalty should be, we will still end up with a situation where a person has a real choice in the matter only if they can afford to pay. We can go no further forward on this rather narrow amendment at this stage, so I beg leave to withdraw it.
Amendment, by leave, withdrawn.
[Amendments Nos. 95 and 96 not moved.]
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Noon
On Question, Whether Clause 15 shall stand part of the Bill?
Baroness Anelay of St Johns: Because of some of the contributions made by the noble and learned Lord, I can be briefer than I might otherwise be, although there are some issues that I need to raise, having given notice that I do not believe that Clause 15 should stand part of the Bill.
This is entirely a probing measure at this stage. My colleagues in another place made it clear that we did not oppose this clause going into the Bill. Our view was that we should see how the provisions in the clause were allowed to develop, consider whether it was effective and see whether the Government tried to expand its use too rapidly. Since these matters were discussed in another place, the Prime Minister announced that he intends to extend the use of administrative punishment substantially. That is a recent development. I should be grateful if the noble and learned Lord could put on the record exactly how that extension of administrative punishment will be achieved. Will what the Prime Minister announced require entirely new legislation? Will some or all of it be capable of being introduced via the primary and secondary legislation already in the Bill?
I am going to quote the noble and learned Lord from the Daily Mail,so he will know directly whether it has got it hopelessly wrong or is correct—who knows which? The Government may be prepared to agree with press quotations for a change; we shall live and learn. On 25 June the Daily Mail quoted the noble and learned Lord as saying that he wanted to have much greater use of conditional cautions, echoing the Prime Minister’s view of 23 June. The noble and learned Lord was quoted specifically as referring to punishments comprising,
When I read that, I thought, “That is what the Bill says anyway”. Is the noble and learned Lord telling us that the Government have marvellous plans for the future and that they will use what is here for their future expansion of justice? The quotation may be wrong, or I may be misjudging him.
Will the noble and learned Lord make a clear statement about the consequences of accepting a conditional caution now under the Bill? Does it mean that a person will not have a criminal record for that offence? Will he give the Committee the figures on reoffending rates for those who have already accepted conditional cautions? It is essential to have such relevant information before we can properly consider whether the clause as drafted should stand part of the Bill.
If we removed Clause 15, we would keep the current legal position whereby the only conditions that could be applied to cautions would be those intended to facilitate the rehabilitation of the offender, or to ensure that the offender makes reparation for the offence. The debate goes to the heart of whether the Government would be right to press ahead with these plans for extending administrative punishment. I hope that the Government would never seek to portray those of us
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I realise, of course, that the person accepting the caution will have admitted their guilt as part of the process. As an ex-magistrate, I would certainly be concerned about the possibility that some people will accept a caution even when they are not guilty rather than go to court, and that the guilty will accept a caution, recognising that with their previous experience of crime they might well receive a lower punishment than if they went to court. Where is the public interest in that? Concern has been expressed both outside and inside Parliament that the power to impose punitive cautions will effectively allow the police and the CPS to act as investigator, prosecutor and judge.
The Magistrates’ Association, for example, states that it considers it,
- “contrary to the principles of justice for prosecutors and police to be able to impose punishment without the involvement of the judiciary. A democratic legal system ensures that an independent tribunal—the judiciary—should sentence and impose punishment, thus preventing bias from prosecutorial authorities”.
The Government’s response has been to repeat their previous press release about,
Of course, I say here and now that I have as much concern for victims of crime as any government Minister. Having sat as a magistrate for many years until I came to this House 10 years ago, however, I am also aware of the importance of careful reflection before punishment is imposed. Punishment is sentencing; we cannot get around that. Careful reflection should be based on thorough judicial training. I would much prefer that which cases should be sentenced in court was decided through statute, rather than giving prosecutors discretionary powers to impose punishment. A clear line should be drawn between an alternative to prosecution, which is what conditional cautions are intended to be in the Criminal Justice Act 2003, and the imposition of a sentence, which we appear to be marching towards.
Existing fixed penalties and penalty notices for disorder, and simple conditional cautions, are alternatives to prosecution. That seems right. An alternative to prosecution can properly involve reparation or measures to help rehabilitation, provided the matter being dealt with is genuinely minor. A disposal imposing punishment that involves an element of discretion becomes a form of sentence. That is where we must discuss whether it should be reserved for the courts, and not given as a power to the prosecution.
Will the Minister confirm that offences for which a caution can be administered include: ABH; affray; criminal damage; possession of class A or B drugs, albeit a small quantity for personal use; having a bladed article in public; carrying an offensive weapon; burglary—non-commercial, non-residential—and theft? These are not necessarily just minor and low-level. If dealt with outside a court, there is no public knowledge of them. Where would the public accountability be?
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The Government have quoted Lord Justice Auld as supporting conditional cautions. In his 2001 review of the criminal courts, he said there was,
- “scope in England and Wales for the introduction of a more general, formalised and conditional cautioning system”.
“Any such scheme should, save for the most minor offences, be the responsibility of the Crown Prosecution Service and subject to the approval of the court. Without the protection of the court’s approval, its use could be used or perceived as a ‘cop-out’ by the prosecution to avoid prosecuting cases that should be prosecuted, or of innocent”,
- “being at risk of pressure to accept onerous compromises to avoid prosecution, or of the rich being able to buy their way out of prosecutions when the poor could not”.
The Select Committee on the Constitution also considers this provision a constitutional novelty. Of course, there is nothing wrong with novelty; it is quite right. One must refresh and renew all the time, provided one challenges those views with a bit of practicality. The committee goes on to make a telling point:
“It may be thought to sit uneasily with the principle of the rule of law, an element of which is that it is for independent courts—not the police or the prosecuting authorities—to punish criminal wrong-doing. This much has been enshrined in English constitutional law by the Bill of Rights 1689, which provides that ‘fines and forfeitures of particular persons before conviction are illegal and void’”.
Of course, I agree with the Select Committee: the clause sits too uneasily with the rule of law. As yet, the Government have not quite justified the inclusion of Clause 15 in the Bill.
Baroness Linklater of Butterstone: I endorse the argument of the noble Baroness, Lady Anelay, which is the argument I made the previous day in Committee. I emphasise that it is fundamental to change cautions from an alternative to entering the criminal justice process to being non-punitive in their objective. I was a magistrate at one time, but am now much more involved with children and young people in the criminal justice process, and I feel that introducing this punitive element without an emphasis on reparation and rehabilitation risks putting children on to the slippery slope. We need to be positive in our approach to and dealings with young people, and to emphasise the value of reparation—making good and paying back for any admitted offence—and rehabilitation. We undermine or diminish that at our peril.
The Lord Bishop of Chester: When I read Clause 15 I was saddened, for the reasons that have been given in this debate. In a week when the Government have pushed through a clear separation between the legislative and judicial aspects of society, it is odd to see the confusions being introduced when punishment is taken out of the realm of the courts alone. If we go back to
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It has been mentioned that the Government want to rebalance the system in favour of the victim. I do not see how this does so because victims need publicly observed and accountable justice. In parenthesis, I add that it is a great mistake for victims to be paraded before the courts to influence judges in the sentences they pass. It is against the principles of justice—this is a different matter, but it bears on what we are saying—if in the future, if victims are particularly upset, a greater penalty will be imposed. That is against the principle that justice is administered on behalf of society as a whole, which is why we have public courts. I think that is what lies behind the reservations of the Magistrates’ Association.
I also fear that it is not good for the police to do this. In our society, the police need to have a clearly defined and upheld role. In recent years, I have been saddened to see the police engaging in public political debate more than has been healthy for them. By all means, they can have private views and express them to the Government, but it has been a mistake to over-politicise the police. At the other end, it would be a great mistake if the police started to be seen as junior magistrates, which is the danger in these proposals. I hope that even at this very late stage the Government will see that the best response to the large prison population, the cost of the justice system and the rise in anti-social behaviour is not this sort of approach, but other approaches that will get to the root of what is happening.
12.15 pm
Lord Hylton: I tend to agree with the right reverend Prelate that justice should be objective and not moved in a subjective direction by over-consideration of victims’ points of view. I understand that the Question on whether to leave out this clause is intended to be probing. The clause has considerable merits because it enables a considerable extension of restorative justice, which I happen to believe in.
I understand that conditional cautions have been in use for some time; for example, by Thames Valley Police and possibly other police services around the country. In the case of Thames Valley, has the Crown Prosecution Service always been involved? It is important that, in using conditional cautions, delay is avoided and offenders who are thought to have committed relatively minor offences are dealt with as swiftly as possible.
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The three points at the bottom of page 8 are of considerable importance. Punishing offenders is usually by means of a fine, but one should think of the offender making reparation to society in general as well as to victims of the offence. I think it goes without saying that all your Lordships would approve very strongly of using conditional cautions to promote the rehabilitation of the offender.
Lord Goldsmith: I am grateful to all who have taken part in this debate. It is important to debate these issues. I recognise that the noble Baroness’s Question is probing and therefore we will return to these issues, but it gives me an opportunity to set out one or two things.
The conditional caution scheme in place was established under the Criminal Justice Act 2003. It provided the police and the Crown Prosecution Service with a new disposal for dealing with low-level offenders who were prepared to admit to their offences and who, if prosecuted, would probably have received a nominal fine, been ordered to pay compensation or been given a conditional discharge at the magistrates’ court.
The noble Lord, Lord Hylton, is absolutely right that conditional cautioning is taking place in Thames Valley; it is one of the implementation areas. I can give him a bit more information about that outside the Chamber, if he would find it helpful. The noble Lord asked whether the CPS had always been involved. Absolutely, yes, because the scheme approved by this Chamber and by the other place was that conditional cautions would require the prosecution to decide the matter, obviously in co-operation, collaboration and discussion with the police.
That it is the prosecutor’s decision is very important, and, to some extent, it may meet the point raised by the right reverend Prelate. But it is the prosecutor and not the police deciding the conditional caution, although the latter have powers, to which I will return. The prosecutor must do that while recognising their professional responsibilities—they are sometimes described as a minister of justice—and being directly accountable to the courts for what they do. I have seen that from time to time, when judges or Benches of magistrates have called in the local prosecutor and asked, often in open court “What has been going on here?” That is perfectly proper in appropriate cases.
The very real benefits of conditional cautioning are: securing speedy redress for victims and enabling the offender—I emphasise, speedily—to tackle the factors that have contributed to his offending. I want to emphasise the benefit to the victim. Absolutely rightly, the right reverend Prelate asked what that meant for the victim. If I may say so, I am not convinced that he is right to say that victims always want to see things happen in court. Often, victims want something that deals with the situation speedily. I fear that at present, for all sorts of reasons—which we are trying to tackle, and we will come back to that issue—delays in court can be such that victims do not see a speedy response to the problem caused to them. On the contrary, it is dragged out: there may be
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