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The five assurances to which the noble Baroness referred, and to which the Minister again referred, which were asked for in the other place and given by the Minister for Policing, are important. I wholeheartedly support them. For me the one that resonates is the need to ensure that adequate consultation takes place. This consultation needs to listen to what is being said by both the public and the experts. Merely paying lip service to consultation, having predetermined the outcome, is completely counterproductive, as I hope the Government have learnt. Local identity matters to local people. They feel a bond with, and take a pride in, their local police force which is based on this identity. That is not to say that local identity is all that should be considered, but minimising its value and ignoring alternatives which might accommodate it is asking for trouble. The other assurances are equally important. Clearly, any future proposals must take account of what is allowable under financial rules in relation to precepting. They must involve making a meticulously and preferably independently evaluated and costed case. It must be a last resort that no other approach will solve, otherwise the public will never be convinced that some other way of doing things is not more important than their local allegiance.

Finally, it must be subject to detailed parliamentary scrutiny. It is, after all, a key constitutional issue if policing by consent is to mean anything. Like the noble Baroness I shall be keeping a

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very close eye on any future statutory instruments dealing with police mergers. It is vital to ensure that there is adequate opportunity for a robust debate to explore whether mergers might, at some point in future, be sensible, and to address the other key criteria set out by the noble Baroness. Half-baked proposals that do not meet those criteria will not pass the test. With the promise of a gimlet-eyed watching brief, I am reasonably content to leave matters regarding mergers in the Government’s hands for the present.

On Question, Motion agreed to.

The Attorney-General (Lord Goldsmith) rose to move,

That this House do not insist on its Amendment No. 5 to which the Commons have disagreed, but do propose the following amendments in lieu thereof—

(a) the amount of the penalty,”(a) in paragraph (a), before “section 25(5)” there is inserted- (b) after that paragraph there is inserted-“(aa)an order under section 23A(4) which makes provision- (i)increasing the fraction in section 23A(3)(a), or (ii)increasing the figure in section 23A(3)(b) by more than is necessary to reflect changes in the value of money,”.”

The noble and learned Lord said: My Lords, I beg to move Motion B standing in the name of my noble friend Lady Scotland. The Motion is that this House do not insist on its Amendment No. 5 and do agree with Amendments Nos. 5B to 5H in lieu thereof.



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When we debated this matter previously, I explained to the House why we are seeking to broaden the scope of conditional cautions by adding a punitive objective to the objectives of reparation and rehabilitation currently allowed by the legislation. Conditional cautions have been operating in a number of areas and have been successful. The usefulness of the scheme has, however, been limited largely to those offenders who have personal problems linked to offending and to deal with offences where there is an individual victim who has suffered quantifiable loss. It has not been possible, for example, to provide for indirect reparation by way of unpaid work.

There are a number of safeguards in the legislation to ensure that it will operate within a proper framework. There are measures to protect the rights of the offender, including the opportunity of free legal advice, the requirement of an admission of guilt by the offender, and the acceptance of the conditional caution in writing. I emphasise again that a conditional caution can be considered only in cases where there is sufficient evidence to prosecute. At all times, an offender can choose to reject the offer of a conditional caution and instead go to court. In the event of non-compliance with a conditional caution, the offender can be prosecuted for the original offence; there is no separate penalty for failing to comply with the conditions although they were accepted before. The offender always has a choice. We believe that, as the Joint Committee on Human Rights found in 2003, those safeguards will continue to ensure that a person’s consent to a conditional caution is not coerced.

However, during previous debates on this matter, it was clear that concerns remained about the level of discretion that would be available to prosecutors, particularly with respect to the financial penalties. We have listened carefully to the concerns and we have brought forward amendments to address this point.

The amendments proposed for insertion into Clause 15 would effect a number of changes dealing with financial penalties. First, Amendment No. 5E proposes reducing the maximum amount of any financial penalty that can be required from £500 to £250. That figure may be more commensurate with the level of minor offending that we are seeking to encompass in the remit of the scheme. If in the future any changes are needed, they will be subject to the affirmative resolution procedure, except for changes arising solely from changes to the value of money.

Secondly, new subsection (1) of Section 23A of the 2003 Act, which would be inserted by Amendment No. 5D, would have the effect of requiring that financial penalties could be used only in respect of a set of offences specified in secondary legislation, subject to the negative procedure. Noble Lords may think this is a significant issue, because concerns have been expressed about what offences would come within the ambit of the financial penalties for conditional cautions, and this means that they would be prescribed in secondary legislation.

Thirdly, new subsections (2) and (3) inserted by Amendment No. 5D would require that secondary legislation would specify in relation to each offence

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the maximum penalty for that offence or group of offences. We plan to do this by grouping offences into bands according to the seriousness of the offence and attaching to each a proposed maximum penalty. The prosecutor would not be able to require a financial penalty that was above the maximum amount for the offence in question. So that already narrows the area of prosecutorial discretion to maxima that had been set in a statutory instrument subject to negative resolution procedure.

We propose also that the secondary legislation provides that the prosecutor has some discretion to reduce the amount of the specified penalty for the offence committed to take account of the offender’s means and the overall proportionality of the conditions. I mention that because in Committee the noble Baroness, Lady Anelay, pressed on me the importance of taking account of the means of the offender and of the overall proportionality of the conditions. I agreed with the noble Baroness that if an offender was subject to a condition—perhaps a reparative or rehabilitative condition—it was right to take that into account in determining what, if any, financial penalty was proposed.

Our proposal is to provide for an ability to reduce the specified penalty proposed as a conditional caution to take account of those features. I hope noble Lords will agree that that is a proper way to strike the balance between the proper concerns that have been expressed by the noble Baroness and the concerns expressed in the previous debate.

Finally, Amendment No. 5G makes subject to the affirmative resolution procedure any proposed changes to the maximum hours, which are set at 20 in the Bill. That would also apply in respect of any proposed changes to the fraction that can be required in relation to the maximum penalty for which an individual would be liable on summary conviction for the offence in question. The same safeguard as that being offered regarding the penalty is being offered in relation to the number of hours—that they cannot be increased without an affirmative resolution, except in respect of changes in the value of money as regards the financial penalty. I hope that noble Lords will agree that the amendment directly addresses the concerns that have been expressed.

We believe that the clause is a sensible and considered addition to the conditional caution scheme and provides the opportunity to deal fairly with offenders who are willing to admit their guilt and allows for a swift and proportionate response with adequate safeguards.

Moved, That this House do not insist on its Amendment No. 5 to which the Commons have disagreed, but do propose Amendments Nos. 5B to 5H in lieu thereof.—(Lord Goldsmith.)

Lord Lloyd of Berwick: My Lords, at Third Reading I pointed out that the clause as proposed was contrary to a basic principle of our constitution in that it is not for the police or the prosecution to have any hand in sentencing an offender. That is a question for the courts. When I asked the noble and learned Lord the Attorney-General how the argument that he was advancing regarding the clearing of graffiti would

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apply in the case of a fine, he said that he would not shy away from that difficulty. But it remains a difficulty and I believe that the way that the noble and learned Lord dealt with it was unsatisfactory. The fact is that a fine is a fine, a fine is a punishment and a punishment is totally inconsistent with the idea of a conditional caution, as originally envisaged in the 2003 Act.

I also made a point that was made by many others, not least by the noble Baroness, Lady Anelay, that this is a radical departure from principle, which has been introduced without any consultation. All those I have consulted—we know the view of the Magistrates’ Association—are, I shall not say horrified, but are certainly as surprised as I am horrified.

The amendments do not answer my basic constitutional objection and I remain rootedly opposed to this clause. But I acknowledge that the Government have tried hard in these amendments to reduce the impact of the clause. The reduction from £500 to £250 is welcome, as is the plan to specify the offences to which the conditional caution will apply and to set separate maxima for each offence. That certainly reduces the discretion. There is still a level of discretion left to the prosecuting authorities which, as I say, I find objectionable. If the amendment were left as it is, I would still find it difficult to accept.

4 pm

Since then the noble Baroness has written to the noble Baroness, Lady Anelay, with a copy to me—which unfortunately I did not receive, but I have now seen a copy—in which she makes certain further suggestions. She says that the intention is not to specify separate maxima for each of the new offences which are to be specified, but to have a norm; in other words, that will be the figure, unless that figure is reduced having regard to the impecuniosity of the offender and one other matter.

That seems to put a different picture on the amendment; because it then becomes much more like the ordinary penalty charge which we all understand and to which no one has ever had an objection. I understand that this will be a penalty of a certain amount unless the amount is reduced because of the impecuniosity of the offender. That seems to me to be much more reasonable and much more understandable. I still have my rooted objection, but if we could be given an undertaking that that is what is intended—a norm subject to a reduction—I, for one, might find it difficult to resist the amendment.

Baroness Anelay of St Johns: My Lords, we remain concerned that the Government are taking our judicial system down a route that could lead to the widespread use of administrative punishment instead of the impartial hearing that is given in a magistrates’ court. Fair trial safeguards and the involvement of the independent court in the delivery of punishment are in the wider public interest and in the interest of the victims of crime. As the noble Baroness knows, I would have preferred to have seen the full report on the operation of conditional cautions, as introduced in the Criminal Justice Act 2003, before we pressed ahead with extending them to punishment.



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This morning I have been in contact with the Magistrates' Association and I have made sure that the noble and learned Lord’s office knew that. I know that the Magistrates' Association shares our concern that these proposals breach the basic principle that sentencing is a matter for the independent judiciary and will still breach that principle despite the concessions offered today.

Why am I not opposing the government amendment and why have I not tabled a Motion? We have very carefully considered the arguments set out on Report by the noble and learned Lord the Attorney-General, at col. 130 of the Official Report of 10 October, that the law currently prevents an offender who has admitted criminal damage from being able to carry out restorative work when the damage has already been dealt with and that the law prevents him from being ordered to carry out other work in lieu—the indirect reparation to which the noble and learned Lord referred in moving the government Motion.

We have certainly considered that and we see the practical arguments behind the Government’s reasons for wishing to press ahead on such a basis. Today the Attorney-General has come forward with amendments that do much to allay the concerns that I brought forward in Committee. I am grateful to him. They should restrict the degree of discretion which may be exercised by prosecutors in relation to imposing punitive cautions that effectively impose a fine and, despite that, as the noble and learned Lord, Lord Lloyd of Berwick, said, we seem to be shifting, I hope—by the nature of what may be happening—from regulations towards more of a fixed penalty.

I am certainly grateful to the noble and learned Lord the Attorney-General for arranging meetings on these matters yesterday. Although, of course, we had seen the published government amendments that came out on Monday, when I met the noble and learned Lord I was not aware of the letter that was winging its way to me from the noble Baroness which gave further explanation. It was not on my desk when I went to see the Attorney-General, but a quarter of an hour later, when I got back, it was on my desk. I only hope that the noble and learned Lord did not think I was looking somewhat vacant and surprised when he made some of his proposals—they certainly came fresh to my mind. It means that today we do not have to object to the Government’s Motion.

It was constructive to hear that the Government will prescribe, in secondary legislation, the offences to which a financial penalty will apply. That is in the printed amendments. However, as we were told in the letter, the practical application is that only a limited range of offences will be prescribed. That is important. They will be listed in banded groups, giving a limited discretion to take the offender’s financial circumstances into account. I agree entirely with the noble and learned Lord, Lord Lloyd of Berwick, about the financial advantages of that.

We shall, however, wish to monitor closely the use of the punitive conditional caution. It should not be an “Open Sesame” for widening administrative

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punishment without conclusive evidence being produced to both Houses that it is both necessary and appropriate. But, as a result of today’s amendments and the further clarification in the Government’s letter, we do not object to the Motion.

Baroness Linklater of Butterstone: My Lords, I echo what has been said by the noble and learned Lord, Lord Lloyd of Berwick, and the noble Baroness, Lady Anelay. We have discussed this matter fully at all stages of the Bill. An important point of principle is involved, as well as significant practical considerations. The principle is that conditional cautions are non-punitive, but that reparation and rehabilitation lies at their heart. We heartily endorse this approach as appropriate, effective and right in terms of requiring the offender to address his offence appropriately by making reparation, which in turn makes amends to the victim. It also makes possible the rehabilitation of the offender by requiring attendance at, say, an alcohol or addiction centre, which lies at the cause and the root of the offence. Thus, the matter is properly and seriously addressed without sucking someone unnecessarily into the criminal justice system.

My regret is that the hands of the Attorney-General appear to be tied by the limitations on conditional cautions as currently designed. There is therefore an inability to allow indirect reparation for damage or harm caused if it is not possible, for whatever reason, for the offender to make good the damage for which he was directly responsible. Making good other damage to the community is not, apparently, allowable. I hope that this issue can be addressed in future legislation because it is an absurd limitation on the possible good that reparation of any kind can do.

To extend these conditions as proposed, however, is to open the door to administrative justice, where a punitive element is now present; where punishments are imposed by the police and Crown Prosecution Service, which then become de facto investigators, prosecutors and judges. The principle of sentencing and punishment being imposed by an entirely independent tribunal—the court—is thus dispensed with. We recognise that we are talking here about the lowest level of offending, but, none the less, this all-important principle of our justice system is being bypassed.

The practical considerations involve the means by which low-level offending can be managed speedily and efficiently, which both deals with the offence and avoids a lengthy process of court proceedings given that the offender has pleaded guilty to a minor offence. This we understand. However, many people may accept a conditional caution, whatever the conditions, because the idea of going to court is so alarming. In doing so, the punitive element is introduced. So we stand on the cusp of principle and practicality.

I am most grateful to the noble and learned Lord the Attorney-General for seeing us yesterday, for the trouble he has taken to examine these issues, for the efforts he has made to meet our arguments and for the accommodations he is now proposing. I

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acknowledge that in terms of the punitive options being considered, the noble and learned Lord has agreed to the limit on the possible fine, which has been reduced to £250, and that any changes to time or limit on punitive conditions will be subject to affirmative resolution procedure on maximum hours, and therefore subject to a vote in both Houses of Parliament before any change is made. I understood him to say at an earlier meeting that in time to come—possibly in a year—he would report back on the outcomes of these changes and on how they are working in the initial pilot areas. It is important to have a chance to revisit these arrangements.

However, given the concessions, and having clearly stated my concerns on the small but important way in which a principle of justice is being undermined, I accept the Government’s new amendments.

Lord Goldsmith: My Lords, I am grateful for what the noble and learned Lord and the noble Baronesses have said. We will not agree on this basic constitutional principle—we did not agree last time and we will not agree now. I still take the view that the courts are in control because a person can always go to the court and ask it to determine. But I do not need to debate that any further. I am glad that, with the adjustments that have been made, we have reached a compromise. It still brings in a change—I do not shy away from that at all—to the original conditional caution scheme, but we believe that that change is important to enable us effectively and fairly to deal with low-level offending.

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