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Lord Hodgson of Astley Abbotts: Much of what I would have said has been more ably said by my noble and learned friend Lord Mayhew of Twysden. I am not a lawyer, but the real issue is that even if one were to get out the books to try to put it together, the clause would remain unintelligible. It is incredibly difficult to put it together. That is not a party political point, but a practical point on the nature of our law, as my noble friend said. When talking of technical, simple amendments, we must find a way of not cluttering it up with previous legislation that makes it unintelligible to those with reasonable intelligence who take the time and trouble to try to understand it.
I accept what the noble and learned Lord said about the technicality of the amendment, but I hope that he will follow my noble and learned friend's advice.
Lord Elton: I wonder whether the combined advice of my noble and noble and learned friends is strong enough. If the noble and learned Lord merely takes the amendment away, he will only take away the small piece of confusion that is added to the already considerable piece of confusion that represents the clause.
Unless we are given an undertaking that the noble and learned Lord will address his mind to simplifying the whole clause, it is a matter that we could decide on the question whether the clause should stand part of the Bill. We could then be certain that the clause would be properly drafted. That would be a practical means of stating the law as it is to be understood.
Lord Maginnis of Drumglass: The theory behind the clause is that there is a punitive or rehabilitative aspect to it. Hence, there will be fewer prosecutions as more offences will be deemed suitable for caution.
However, I do not believe that it will work. I have no legal expertise, but common sense suggests that it cannot possibly work. There are two weaknesses. The first is that it will encourage people to admit to offences to get quick disposal. Secondly, it will result in more cases. There must be a mechanism for determining when there is a breach of conditions, especially if the matter is contested. Therefore, I believe that more unnecessary work will be imposed on the courts if the clause is accepted. For that reason, I support what previous contributors to the debate have said.
Lord Renton: Like my noble friends, I was a bit puzzled by the clause and the amendment. In the hope
of finding some help in understanding the matter, I turned to the Explanatory Notes. Extraordinarily, although there are notes on Clause 19, Clauses 20 and 21 are left out. I do not know why. It is very unhelpful.
Lord Goldsmith: I obviously take very much to heart the observations that have been made, starting with those of the noble and learned Lord, Lord Mayhew of Twysden. The clause amends the Bail Act 1976. Whenever legislation amends previous legislation, one starts with the difficulty of having to have that other legislation in mind when looking at the amendment. What is more, an amendment that adds a different slant, exception or qualification to previous legislation necessarily has to do it in a way that was not in the mind of the draftsperson of the original Act. That is an added complication.
I shall spend a moment explaining what the clause does and what the amendment, which I foolishly described as simple, is intended to achieve. Three special provisions are introduced by earlier clauses of the Bill. Clause 14 provides a new special presumption in the case of people who commit offences on bail. I parenthetically draw the attention of the noble Baroness, Lady Walmsley, to that in the light of her observations on Clause 19 about us not dealing with habitual offenders. That is to be paragraph 2A of Schedule 1 to the Bail Act 1976. The second special provision is in Clause 15, which introduces a new paragraph 6 to part 1 of Schedule 1 to the 1976 Act, which is a special presumption in relation to those who abscond while on bail. The third special provision is in Clause 19, which adds paragraphs 6A, 6B and 6C to the same part of the same schedule in relation to drug users. The general provisions in part 1 of Schedule 1 to the 1976 Act are therefore subject to the three special regimes—that in paragraph 2A for those who commit offences on bail; that in paragraph 6 for those who abscond on bail; and that in paragraph 6B for offenders with a particular connection with a drug offence and who have been offered assessment or treatment and declined it.
Thus far, viewed in the context of the whole, that is not a difficult provision. I detect that it may be useful to provide a version of the relevant part of the schedule as it would appear after the amendments so that the Committee can see how it all fits together. I am happy to undertake to do so. That information is sometimes inserted as a schedule to the Act—a so-called Keeling schedule—but I reserve judgment on whether that is necessary in this case. Doing that every time there is an amendment to a previous Act adds to the volume of legislation. I am certainly prepared to ask that that should be considered and I shall undertake to provide the draft.
The clause makes a special case—in sub-paragraph (2)(c) to be inserted into the schedule—in relation to people who fall within paragraph 6B, but fails to take account, without the simple amendment that I have moved, of the fact that people may not fall within paragraph 6B because, according to paragraph 6C,
inserted by Clause 19, there is not a relevant scheme within their area, so they should not be subjected to that scheme.Noble Lords may say that it has taken me a very long time to explain that—assuming I have explained it accurately—and that that is a defect in the drafting. However, the clause is supplementary to the substantive clauses that have gone before. To answer the noble Lord, Lord Renton, the fact that it is supplementary to—perhaps almost consequential on—the changes made by the preceding clauses results in there being no separate explanatory note for it. I hope that what I have said may serve as some sort of supplemental explanatory note for those provisions.
If any of that is wrong, I undertake to write to noble Lords to say so. I shall take away the question of producing a schedule and see how noble Lords feel about it at that stage, but for the moment I hope that I may be able to press my amendment.
4.45 p.m.
Lord Elton: The noble and learned Lord's penultimate sentence gave the game away. Saying, "If anything I have said is wrong," followed by a long pause to look round the Chamber, to the far corner and round noble Lords' faces, suggests that there is a mote of doubt in his mind about whether he has got it right even with the brief in his hand.
Lord Goldsmith: I am a very modest man. I simply developed my response without assistance from the Box. There is therefore always a chance that I am wrong.
On Question, amendment agreed to.
Clause 20, as amended, agreed to.
Clause 22 [Conditional cautions]:
Lord Dholakia moved Amendment No. 74:
- Page 16, line 7, after "caution" insert "in respect of an offence and in lieu of charging"
The noble Lord said: We now come to Part 3, about conditional cautions. The Bill allows for a caution with specific conditions attached to be given when there is sufficient evidence to charge a suspect with an offence that he or she admits and the suspect agrees to the caution. It will be for the CPS to decide whether a conditional caution is appropriate and in most cases it will be for the police to administer it. If the suspect failed to comply with the condition, he or she would be liable to be prosecuted for the offence. The Bill provides for the publication of a code of practice for conditional cautions.
No one underestimates the value of cautions. There are many examples of people being diverted away from further offences. The Auld review gives a specific figure of 266,000 cautions issued in 1999.
Clause 22 defines the conditional caution and provides that it may be given to an adult offender if the requirements in Clause 23 are met. The conditions that may be imposed are restricted to those aimed at
reparation for the offence or the rehabilitation of the offender. A conditional caution may be given by an authorised person, as defined in subsection (4).We share the concern that was expressed by Justice and the Law Society that imposing conditions as part of the cautioning process may involve complex methods of rehabilitation and reparation and may potentially require the involvement of the victim of the offence. Making appropriate decisions on this issue—in effect, sentencing—requires adequate training. Only persons authorised by the DPP who have received such training should impose such cautions. We therefore agree that constables and investigating officers should be deleted from the definition in Clause 22(4).
The amendment is designed because of the dangers that could occur if proper training has not been granted. A caution is a way of taking no further action while allowing the police to record that the crime has been cleared up. Cautions are increasingly under-used and need to be rehabilitated, but if conditions are attached, will arrestees be less likely to accept a caution and will the police be less likely to offer one? The amendment would clarify that conditional cautions are in respect of an offence but in place of the person being charged with a criminal offence.
We raise this issue because some years ago I examined the evidence that was produced by the Commission for Racial Equality in relation to juvenile cautioning. It was pretty clear that policy varied from police area to police area throughout the country. In many cases, it was evident that black youngsters were less likely to receive cautions and more likely to end up in the courts the next day. We need a code of practice that clearly specifies the level at which such decisions should be taken and that those who take them should be properly trained to deal with such matters. I beg to move.
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