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I recently referred publicly to a case in Lancashire where an elderly lady who had been the victim of some violence to her property was pleased that the property had been fixed by the young man and that he had apologised to her in a way that made her feel that the problem was solved. It also clearly drove home to him the consequences of his offending behaviour, because he had to confront, as it were, and address the problem that he had caused to an actual person. Again, the noble Lord, Lord Hylton, is absolutely right in saying that restorative justice can be very valuable in that way, although it is obviously not appropriate in all cases.

The conditions attached to the caution can take specific account of the needs of the victim and therefore give the victim a voice without the need to go to court. The conditional caution code of practice, to which the noble Baroness referred in our previous debate, makes clear that victims’ views should be taken into consideration by prosecutors when determining whether a conditional caution is a suitable disposal. That is important and I am sure that we will want to keep that as part of the future use of conditional cautions.

What is a conditional caution? Here, I answer one of the questions put to me by the noble Baroness, Lady Anelay. It is not a court sentence. It is not a criminal conviction. It is an admission of guilt, which can form part of an offender's criminal record and may influence how they are dealt with in future proceedings, in the same way as can a simple caution. It can be quoted on a standard or enhanced disclosure issued by the Criminal Records Bureau and made known to a prospective employer—the Committee may think that that is right.

I return to the point about the relationship with the magistrates’ courts. I hope that all Members of the Committee will recognise that the rule of law is something which I and the whole of the Government take very seriously and regard as very important. We must recognise what it means operationally. At the moment, there is considerable pressure on magistrates’ courts. Cases can take a long time to get there, with many adjournments. The pressure on the magistrates’ courts will not lessen; it may get greater because, under the Criminal Justice Act, they will have increased sentencing powers once that part of the Act is brought into effect. That will increase the volume of work that we will ask them to do—because we trust them and recognise the very important role that they play in society and in the community. We want to say, “Let us remove from you straightforward, simple, low-level offences where there is a guilty plea. That will free up your time to deal with the more serious, complex and contested cases”.

Early implementation of the scheme in the past 14 months in a number of areas has highlighted the benefits of conditional cautions so far. However,

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the feedback that we have had from the police and the Crown Prosecution Service in the early implementation areas is that the benefits of the scheme are limited by the current restriction on the aims of the conditions that can be imposed, which must be reparative or rehabilitative. In particular, experience showed that the existing power in Section 22(3) did not give the flexibility needed to respond to offenders individually. Some offenders who should have got the benefits of the scheme were simply falling out of it for that reason. At the moment, conditions would need to be reparative, in which case the victim needs to be identifiable with a quantifiable loss and willing to accept reparation or rehabilitation, such as dealing—it is important that we should do this—with the underlying problems, such as drugs, alcohol and so forth.

A particular problem was that it was thought that we could not use the existing conditions to provide indirect reparation. The noble Lord, Lord Hylton, has given one instance of indirect reparation through paying something back to the community. I shall be even more specific. If an offender produced some graffiti, it would be reparative to require him to take off that graffiti, but you could not require him to do so if you could not identify the graffiti for which he was responsible or if it had already been cleaned up by the local authority or the building’s owner. Our interpretation of the Act is also that you could not require him to clean up other graffiti. Noble Lords might think that that is exactly the sort of situation in which you would want to consider being able to make a suitable offender see the consequences of his offending behaviour by doing something that is directly related to it.

Clause 15 would therefore enable the scheme to apply to a broader group of offenders. It would include cases where direct reparation is not possible because of practical factors such as the victim’s reluctance, the harm having already been remedied or the victim being the community at large. It would also include cases where the offender has acted out of character by committing the offence and has no discernible personal problems that contributed to the offending that demanded rehabilitation. Paying a financial penalty, undertaking unpaid work or attendance would be possible conditions. Yes, it is right to describe the measures as punitive, but they would also have a deterrent effect and an indirect reparative effect in the way that I have described.

Noble Lords have referred to what Lord Justice Auld said about financial penalty in his report, and we should bear it in mind that fines by prosecutors have been a part of the system in another part of this Kingdom—Scotland—for a long time. I understand that they are not only accepted but welcomed in the community as a way of diverting low-level offending away from the court without the need for a court appearance. So welcome are they that there are proposals to increase the limit for those fiscal fines. Other countries use a similar system, and although, as I have said, I am very strongly in favour of the rule of law, I do not believe that in Scotland or in those other countries, allowing these conditions to be imposed in any sense undermines the rule of law.



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In that respect, I want to underline some very basic points. This does not apply except to an offender who admits his guilt. If someone contests his guilt, he goes to court. That will not change. If the prosecutor cannot decide whether he is guilty and cannot impose a caution, he goes to court. Secondly, he is under absolutely no obligation to accept the caution. Again, as I said, if he does not agree with the conditions and prefers to take his chances with the court, he is absolutely free to do so. Those are the key constitutional issues. The court will determine guilt where that is contested. Ultimately, the court is there to fix the penalty if the offender does not like the conditions proposed to him.

12.30 pm

On the previous day in Committee, the noble Baroness asked about the degree of consultation. I regret the fact that the earlier stages of developing our plans did not involve as much consultation with the groups that she identified as it should have done. But consultation has been taking place. My noble and learned friend Lord Falconer, the Lord Chancellor, and I have discussed these conditions with magistrates, judges and officials from the Office for Criminal Justice Reform. The office of my noble and learned friend Lord Falconer and my office have held discussions with representatives of the Magistrates’ Association and members of the senior judiciary. There has been at least one consultation with the Criminal Justice Council on which Victim Support is represented. At a local level, areas have engaged with victims groups and voluntary organisations. I am very happy, as is my noble and learned friend, to continue all such discussions. It is important that we debate these things.

From time to time, reports appear in newspapers suggesting different things to those which the Government propose. The noble Baroness, Lady Anelay, referred to a report in the Daily Mail, which rather remarkably quoted me as referring to the present proposals as if they were something else. She may not be entirely surprised to hear that I have not spoken to the newspaper. I think that it was quoting from a speech about this Bill rather than something else, but there we are. However, it is true—we will have to come back to this—that other things have been said about how we want to develop the criminal justice system.

The scheme overall is governed by the Conditional Cautioning: Code of Practice, which has a statutory basis in the Act. That would be the same if the conditional cautions scheme is extended; that is, the same requirement for the Conditional Cautioning: Code of Practice will result. That is a matter therefore to which we will have to come back. On the question of to which offences it will apply, the overriding limit will be whether the conditions which are available are appropriate to the form of offending. If offences are of such a degree of seriousness that it is not appropriate for them to be dealt with by compensation, a short attendance, reparation or rehabilitation, they certainly will not be dealt with in it. The noble Baroness, Lady Anelay, read from a list in the existing code of practice guidance issued by the DPP, which gives the constituency of offences that

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this could be used for. That obviously is not at all the same question as whether in a given case they should be used. There can be considerable levels of difference in the sort of offences and the offenders who commit them. She is right that one has to look at the offender.

In conclusion, first, we already accept that in certain circumstances penalties are imposed outside the courts. The police do it in relation to fixed penalty notices in a number of areas. Members of the Committee might agree with me that to have an additional safeguard that the prosecutor imposes is beneficial and avoids just one mind looking at a case. Secondly, the experience so far has been that victims have found the conditional cautioning scheme helpful because they have been involved in it, they have had a voice and it has been much speedier. I know of one case where £1,000 compensation was paid within a week—or something of that sort—to a victim. I am afraid that that certainly would not happen under the court system as it presently operates. I hope that the Committee will see the benefits of conditional cautioning and will agree that Clause 15 should stand part.

The Lord Bishop of Chester: Before the noble and learned Lord sits down, I thank him for his earlier explanation. I accept that if the Crown Prosecution Service is seen as the driver of the system, it protects the police from being seen as junior magistrates, although maintaining that distinction will be very important. However, does the Minister share with me a sense that the term “administrative punishment”, which is now being widely used, does not sound quite right? It gives the impression that it is the Government who are giving administrative punishment. I wonder whether any punishment that takes place other than through the courts should be seen somehow as on behalf of the courts. It is an essential principle that the courts in a democracy exercise the right to judgment and punishment. Perhaps the expression “administrative punishment”, which rolls off the lips fairly easily, is rather unfortunate.

Lord Hylton: Before the noble and learned Lord replies, is it not the case that there are now a wide range of fixed penalties which can be applied to offenders without recourse to a court?

Lord Goldsmith: The noble Lord, Lord Hylton, is right. Of course, there is the possibility of recourse to a court, as there would be here. If you do not accept a fixed penalty notice put to you by the police, for whatever reason, you can go to court. If you do not like the conditional cautions being offered to you by a prosecutor, you can go to court. The court remains at the apex of this system and in overall control of it.

I certainly take on board what the right reverend Prelate said about the term “administrative punishment” and I will consider it. It is not a term that I use. People say to me that “conditional caution” is not exactly a catchy phrase either, so perhaps we need to think generally about them.



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Baroness Anelay of St Johns: I am grateful to all noble Lords who took part in that debate, which goes to the core of the kind of punishment that should be meted out outside of a court. The whole debate has to go on the balance between two competing calls on the system. The right reverend Prelate the Bishop of Chester clearly enunciated the fact that victims need a publicly observed objective process in the criminal justice system. That is absolutely vital. On the other end of the scale, the noble Lord, Lord Hylton, was right to point out that we need a swift and fair system of restorative justice, which is where I agree wholeheartedly with the noble and learned Lord. We want a criminal justice system that can be responsive in a fair and effective way. We do not want hold-ups in the court system. But, of course, as magistrates say very clearly, they do not feel that they are causing the difficulties and that there are ways of dealing with the administration of justice which would make the system work more quickly. We agree with the Government that the existing system of conditional caution should be given a fair run.

Although the noble and learned Lord was very courteous in addressing most of my questions, there was one outstanding which I will not pursue today, although it may be that he is able to give the answer. It concerned the reoffending rate on existing conditional cautions. I would be perfectly happy if he would prefer to write.

Lord Goldsmith: I apologise for not dealing with that question. The information that I have is simply that the scheme has been going for an insufficient length of time to give a meaningful answer to that question. But if I can improve on that, I will write to the noble Baroness.

Baroness Anelay of St Johns: I am grateful to the noble and learned Lord. Although I very rarely disagree with the right reverend Prelate, I have to on this occasion on the issue of what these punishments are called. I understand why he does not like the term “administrative punishment”. I use it because I want to distinguish this new provision in the Bill from the rather glib phrase that we see in the press about the extension of summary justice. This is not summary justice, which can be done through the courts and always has been. That is why I seek a distinguishing description. I would be happy to find something else: if the right reverend Prelate can help me—

The Lord Bishop of Chester: I object even more strongly to the term “summary justice” than I do to “administrative punishment”.

Baroness Anelay of St Johns: We are getting closer together again, which reassures me. I like to be on the right side occasionally, if not all the time. So we all need to look at a way of describing it. Whatever it is, it has to work for the victim and the offender, who, as the noble and learned Lord has said, has admitted his or her offence. I am particularly grateful to him for putting clearly on the record the position of the person who has admitted the offence with regard to how it may or may not constitute a matter that goes on to their record, particularly with reference to the Criminal Records Bureau check. That answer has not been given in another place.



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Overall, we are trying to avoid delay. To that end I shall not delay the Committee any longer on this matter. Considerable concerns remain and the fact that the noble and learned Lord has seen satisfaction with this in Scotland and other countries does not necessarily mean that we would be willing to go down that route in this country. The Government are fond of saying that Scotland is different—“Devolution gives us a joyous difference”. Perhaps we should look for a joyous difference and improvement here too, but for now I shall certainly not continue to resist this clause standing part of the Bill.

Clause 15 agreed to.

Clause 16 [Arrest for failing to comply with conditional caution]:

Baroness Anelay of St Johns moved Amendment No. 97:

The noble Baroness said: Noble Lords will be pleased to learn that fairly shortly they will hear voices other than mine. In moving Amendment No. 97 I shall speak also to Amendments Nos. 100 and 102 tabled in my name, and refer briefly to Amendment No. 98 to which I have added my name in support. My amendments are probing in nature. Clause 16 gives police constables a power of arrest without warrant where an offender is suspected of having breached the conditions of a conditional caution without reasonable excuse. The Government argue that this will speed up the prosecution of the original offence.

The clause will insert new Section 24A into Part 3 of the Criminal Justice Act 2003, and I ask that Amendments Nos. 97 and 102 should be read together. They would clarify that the various options specified in Section 24A(2)(a) to (c) would be available only where a prosecutor has decided that a condition of the caution has been breached without reasonable excuse. It would make it possible for the person to be released on bail before it has been determined whether that person has breached the conditions of their caution without reasonable excuse. New Section 24A(2) requires that a person who has been arrested for a suspected breach of the conditions of their caution should be “charged with the offence” for which they were originally arrested, or released on bail but without charge, or released without charge and without bail, but with the possibility of the conditional caution being varied. I do not have a problem with the proposal that the Section 24 powers should be used where it has been established that there has been a breach of the conditions of caution. However, Section 24 would not limit the use of the powers in that way; it would enable them to be exercised purely by virtue of the fact that the person has been arrested on suspicion of breaching a caution. Is that the Government’s real intention?



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Where a person accepts a conditional caution instead of being prosecuted for an offence, they of course effectively enter into a contract with the state on the basis, “If I, the offender, comply with these conditions, you, the state, will not prosecute me”. Surely it would not be right for the state then to breach that agreement by charging the person with the original offence unless it had first established that the person had indeed breached the conditions of the caution and thereby had broken their side of the agreement. Paragraph 176 of the Explanatory Notes acknowledges that this is not the intention:

The same argument could logically apply in relation to the proposal to vary the conditions of a caution to change unilaterally the terms of the deal between the state and the offender without any reason. My amendment simply clarifies the position. In addition, I recognise that of course it may be necessary to release someone on bail while it is being decided whether they have breached the conditional caution. Amendment No. 102 would enable that to happen.

Amendment No. 100 would delete subsection (6) giving the police the power to keep the person in police detention while the investigation is under way about the suspected breach of the caution. The amendment has been tabled simply to probe how long the Government anticipate it would be reasonable for the police to keep a person in detention for this purpose. I realise, of course, that the noble and learned Lord is likely to give a full response to this point when replying to Amendment No. 99 tabled by the noble Lord, Lord Dholakia, and the noble Baroness, Lady Harris of Richmond. That amendment seeks to put a 12-hour limit on the length of time for which a person arrested on suspicion of breaching a caution could be held in custody.

I note that Hazel Blears stated on 23 March that the Government,

So we have to ask the age-old question: how short is short? I would be grateful if the noble and learned Lord could address the specific point raised by the Magistrates’ Association on this matter: what safeguards will be in place regarding the operation of that power by the police? Why would it be right for the police to have greater powers in relation to such cases than magistrates have in relation to breaches of court orders? I beg to move

12.45 pm

Baroness Harris of Richmond: I shall speak to Amendments Nos. 98 and 99 which have been tabled in my name and that of my noble friend Lord Dholakia. He is unable to be with us today, having gone to Scotland to be with my noble friend Lord Steel while he receives his honour. Clause 16(4) states that:



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Our amendment would insert at the end:

I turn now to Amendment No. 99. As the noble Baroness, Lady Anelay of St Johns, has so rightly said, this amendment would put a 12-hour limit on the length of time for which a person arrested on the suspicion that he has breached a conditional caution could be held in custody. It would also prevent a person being re-arrested for the same suspected breach of a condition.

As well as giving the police powers to arrest someone suspected of breaching a conditional caution, the Bill would allow them to detain the person indefinitely until they felt able to decide whether to charge or release. It must be remembered that the only purpose of this detention is to ascertain whether a condition has been breached and thereafter to decide whether to charge the person with the original offence or to release them, whether or not on bail. Given the restricted purpose for the detention and the Government’s confidence that conditional cautions are to be used only for low-level offences, it would be entirely disproportionate to give the police an indefinite power of detention in such cases. The Magistrates’ Association has gone as far as to describe this as,

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