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Lord Goodhart moved Amendment No. 115:

Page 42, line 21, at end insert ("or
(c) where the offender has previously been warned, the constable considers that to continue a rehabilitation programme arranged under section 54(2)(b) below would be more likely to prevent the commission by the offender of further offences than prosecuting him for the offence and the constable considers the offence to be not so serious as to require a charge to be brought;").

The noble Lord said: My Lords, in the absence of my noble friend Lord McNally, who is unwell, and my noble friend Lord Thomas of Gresford who should have departed from Euston station around 15 minutes ago, it falls to me as third string to move this amendment.

By no means for the first time, but possibly for the last time during the debate on this Bill, I wish to complain of the rigidity with which the Government have approached many of the aspects of the Bill, in particular the aspects of cautioning and sentencing.

The Bill as it stands allows a warning to be given only if the offender has not previously been warned or, where the offender has previously been warned, the offence was committed more than two years after the date of the previous warning and the constable considers the offence to be not so serious as to require a charge to be brought. I entirely understand and sympathise with the Government's desire to curb the practice of giving repeat cautions which, as the Government made clear, do nothing but create an attitude in the young offender that he does not have to worry about justice. That is wrong, and it is right that repeated cautions should not

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be given in normal circumstances. I would have hoped that this matter could be dealt with by guidance from the Government to police forces rather than by a rigid statutory restriction on the power to give a warning.

What the amendment provides for is very far from being a general power to give a second warning. It is a tightly limited amendment which merely authorises a second warning to be given within the two-year period where the constable considers that the continuation of a rehabilitation programme would be more likely to prevent the commission by the offender of further offences than prosecuting him for the offence. This seems to be a very reasonable amendment and it is certainly one which in no way will give rise to the abuse of constantly repeated cautions without prosecutions.

In those circumstances, and taking into account the fact that the amendment is supported by the National Association of Probation Officers, it is my hope that even now the Government will be prepared to consider this limited extension of the power to grant a second warning and give a certain degree of increased flexibility to the way in which offences by young people are dealt with. I beg to move.

Lord Williams of Mostyn: My Lords, Clauses 53 and 54 are, as the noble Lord rightly said, designed to replace the existing cautioning arrangements, which have been abused and perverted. I do not think it is fair to say that the Government have approached the Bill with rigidity. On 11 distinct aspects we have varied our original views after carefully giving consideration to what has been put to us. I do not think that the experience of Clause 40 points to rigidity.

Lord Goodhart: My Lords, I was not complaining about the Government's rigidity regarding criticisms of the Bill but about the Government's rigidity in the way they have imposed restrictions on the powers of the courts and constables.

Lord Williams of Mostyn: My Lords, this amendment deals with constables and constables alone. Perhaps I can show that rigidity is not a necessary consequence of our suggested regime.

The noble Lord is suggesting additional grounds for issuing a second warning. First, a police officer must consider that the continuation of the previous rehabilitation programme would be more effective; and secondly, the new offence must be one that clearly does not merit prosecution. We debated this in Committee and I have listened again this evening. Certainly, as a matter of practice, the question as to whether rehabilitation would be more effective than prosecution will be extremely difficult for a constable to judge. I think it would be virtually impossible for a police officer to deal with it personally. It seems to me that he would have to consult the youth offending team in question. Then we would be back to our old, well known friends, delay and uncertainty. The young person would be left in a kind of limbo, wondering what is going on, and the whole point of this regime--a quick, clear and known response to offending behaviour--would be lost. One would also have variation in practice between one

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police force and another and the kind of inconsistency that undermined the effectiveness of the current cautioning arrangements.

We believe that, if a young person commits a further offence, the proper course of action is for the police officer in the appropriate case to charge that young person. Then it is for the Crown Prosecution Service to take a decision as to whether prosecution is the right way forward. The Crown Prosecution Service, as I mentioned earlier, can take into account the issue of public interest, including the detail of the young person's offending history. Therefore, that is the flexibility which the CPS introduces into this story. It is not rigidity, because the Crown Prosecution Service has a discretion which it is capable of exercising.

We believe therefore that it is for the CPS to take the decision about discontinuance or not, to take the decision in line with the code for Crown prosecutors in full knowledge of all the facts of the case and bearing in mind the injunction set upon the CPS that it must take into account the public interest in a child case. We believe that that is what we ought to be doing. I am quite satisfied, not in a spirit of "We thought of it therefore we cannot change" but in the genuine feeling that the cautioning practice has gone so sadly astray that it has done infinite harm to many young people. We believe that the appropriate component of flexibility is provided for by the CPS discretion. I hope that the noble Lord, Lord Goodhart, will not be so rigid as not to realise the attractions and virtue of the argument I have put forward.

Lord Goodhart: My Lords, I thank the Minister for that reply. While I recognise that there is an element of flexibility through the possibility that the CPS will decide to take no action on the prosecution, in the kind of circumstances that are envisaged by this amendment it would be much better for the appropriate and necessary decision to be taken by the police officer who is much closer to the offence and to the offender than the CPS. Certainly, so far as delay is concerned, it seems to me that it is likely, even if there is a necessity to consult the youth offending team, that it would also be quicker if dealt with by the police than by the CPS. However, this is not a matter on which I feel it would be appropriate to press the Government further. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Williams of Mostyn moved Amendment No. 116:

Page 42, line 27, after ("station") insert ("and, where the offender is under the age of 17,").

The noble Lord said: My Lords, in moving Amendment No. 116, I speak also to Amendments Nos. 117 and 118. In Committee your Lordships agreed a government amendment which sought to bring the provisions of the Bill in respect of the role of appropriate adults into line with those under the Police and Criminal Evidence Act 1984. But the noble Lord, Lord Henley, in commenting on the amendment, now subsection (6) of Clause 53, was concerned about drafting. He made it plain that that concern was not

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related to the purpose of the amendment but to the form of it. He asked me to think again and to consult parliamentary counsel to see whether we might improve clarity. I have done that. I think the noble Lord was right. These amendments are to meet the noble Lord's concern. Amendment No. 118 removes subsection (6) of Clause 53. Amendments Nos. 116 and 117 give effect to the same policy objective by putting the references directly into subsection (5) of Clause 53. I hope that your Lordships think that that is an improvement and I am sure that the noble Lord, bearing in mind his paternity, will bless his offspring. I beg to move.

Lord Henley: My Lords, I rise merely to say that I thank the noble Lord and offer my blessing to these amendments.

On Question, amendment agreed to.

Lord Williams of Mostyn moved Amendments Nos. 117 and 118:

Page 42, line 29, after ("and") insert (", where he is under that age,").
Page 42, line 36, leave out subsection (6).

On Question, amendments agreed to.

Clause 54 [Effect of reprimands and warnings]:

Lord Williams of Mostyn moved Amendment No. 119:

Page 43, line 37, leave out from ("warning,") to ("make") in line 38 and insert ("the court by or before which he is so convicted--
(a) shall not").

The noble Lord said: My Lords, Amendments Nos. 119, 120 and 198 are grouped. I shall speak to them together, if I may. The three amendments--the last is a consequential amendment to Schedule 7--are to strengthen the existing provisions of subsection (4) of Clause 54. Subsection (4) provides that a conditional discharge may only be used in exceptional circumstances where a person is being sentenced for an offence committed within two years of receiving a warning. Our aim is that young people appearing before the court in these circumstances should receive a sentence which is both proportionate and directed at preventing further offending behaviour. In some cases, a conditional discharge will be sufficient to meet these objectives, but in very many cases it will not. The amendments would require a court, when issuing a conditional discharge on the grounds of "exceptional circumstances", to state its reasons. We believe that that provides the discipline so that "exceptional circumstances" are not interpreted too widely or used inappropriately.

There is such a provision in the Criminal Justice Act 1991 in relation to the use of custodial sentences. These amendments reflect a suggestion made by the Magistrates' Association and an amendment tabled in Committee by the noble Lord, Lord Henley, the noble and learned Lord, Lord Mackay of Drumadoon, and the noble Baroness, Lady Anelay, which was, in the event, not moved. I beg to move.

On Question, amendment agreed to.

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10.30 p.m.

Lord Williams of Mostyn moved Amendment No. 120:

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