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Lord Dholakia: I thank the noble and learned Lord for his response. Juvenile cautioning and cautioning in general are a success and an essential part of the

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criminal justice system. I look forward to his written response on the matter that I raised, but, in the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hodgson of Astley Abbotts moved Amendment No. 75:

    Page 16, line 13, leave out "either or"

The noble Lord said: I shall speak also to Amendments Nos. 77, 78 and 79.

Amendment No. 75 concerns the specific aims of the conditions that are attached to the conditional caution in Clause 22(3)(a) and (b). We feel that the conditional caution—which, as I said in debate on the previous amendment, is a welcome proposal—will operate to full effect only if it assists the rehabilitation of the offender and ensures that he or she makes reparation. It would be inappropriate to allow a caution if it would achieve only one of those two objectives. The offender making reparation and restoring his good repute by rehabilitation should go hand in hand. If the Government have felt it necessary to include both those purposes, it seems odd for it not to be necessary for the offender to fulfil both conditions.

In our discussion on bail, we heard much from the Government about the position of victims—indeed, according to the Government, much of the Bill is concerned with the victim. Reparation is essential if victims are to feel that justice has been done. Indeed, it is hard to see how full rehabilitation can be achieved without it. So we want to excise, "either or", and leave both rehabilitation and reparation as objectives.

Amendment No. 77 also relates to Clause 22(3)(a). Its purpose is to make the language in the Bill more achievable and realistic. We note that the Government have tabled an amendment and we are happy to retain the word "facilitating" alone, and to leave our word, "assisting", by the by. Amendments Nos. 78 and 79 focus on the qualifications of those authorised persons who are permitted to give conditional cautions. Clause 22(4) lists those who are authorised as:

    "(a) a constable

    "(b) an investigating officer, or

    "(c) a person authorised by the Director of Public Prosecutions",

although the Government propose to change the latter to "a relevant prosecutor".

Amendment No. 78 restricts that authority to that under paragraph (c), "a relevant prosecutor". That amendment was tabled at the suggestion of the Law Society, which explained that the conditions attached to a conditional caution would be complex and that the appropriateness of a constable or investigating officer, who may have little or no direct training in assessing such conditions, granting a conditional caution, is clearly arguable. Amendment No. 79 is slightly less restrictive and would allow only an officer of the rank of chief inspector or above, other than the public prosecutor, to issue such conditional cautions.

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In another place, Ms Harriet Harman alleviated our concern to some extent by explaining in Committee that the decision about whether there will be a conditional caution is not that of the police, but of the Crown Prosecution Service. However, it has been pointed out that that is not made clear anywhere in the Bill. As I said, Clause 22(4) lists who might be the "authorised person". Subsection (1) explains clearly that any authorised person may give a conditional caution. However, apparently, that will not be true, according to what Ms Harman said in the other place. If she is correct, the relevant prosecutor is the only person under subsection (4) who can actually "green-light" a conditional caution. From the Bill's current wording, it appears that a constable or investigating officer will also have that power but, according to Ms Harman, they can only follow instructions given to them.

The Minister in the other place explained that such problems of wording can be amended when the code of practice is drawn up. Our amendment would make those changes now. We consider that primary legislation should be correctly worded. To complete a Bill knowing that its wording is inadequate is surely perverse. The use of codes of practice as a fallback for correcting such important issues is sloppy. Where possible, details should be made clear in primary legislation. Details such as these are very important or we risk leaving the clause open to misinterpretation. I beg to move.

Lord Goldsmith: I shall speak to Amendments Nos. 75, 77, 78 and 79, and to Amendment No. 76 tabled in the name of my noble friend Lady Scotland of Asthal. Amendment No. 75 would have the effect of insisting that a conditional caution could be made only where the condition would have two effects: it would facilitate the rehabilitation of the offender and do something in relation to reparation for the offence. While in many cases that may well be highly desirable, the condition need not necessarily do so for it to be valuable. For example, it is easy to envisage a condition that is clearly rehabilitative but is not concerned with reparation, such as taking lessons in how to drive better. That might be an appropriate condition to impose, but it may do nothing, save in the most general sense, towards reparation for a victim. We stand by the clause as drafted because it is appropriate that either condition should be sufficient to warrant such an order being made.

I turn now to Amendment No. 77. I am grateful for what the noble Lord has said. Amendment No. 76, which I shall move in due course, will remove the word "ensure" because that is going too far. I am glad that the noble Lord has indicated that he is content with that adjustment to the clause and as a result will not press his own amendment.

Amendments Nos. 78 and 79 seek to limit the category of police employee authorised to administer conditional cautions to officers of the rank of chief inspector or above. Two different persons are referred to in these provisions and we need to distinguish between them. It is easier to start by considering the

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provisions of Clause 23 and looking at what are the requirements for the issue of a conditional caution. The second requirement is that the Director of Public Prosecutions must decide,

    "(a) that there is sufficient evidence to charge the offender with the offence, and

    (b) that a conditional caution should be given to the offender in respect of the offence",

It is therefore for the Director of Public Prosecutions, which by reason of provisions set out in the Prosecution of Offences Act 1985 means any crown prosecutor in the Crown Prosecution Service, to decide whether a conditional caution should be given. By accepting the previous amendments, the Committee has just extended that by inserting instead the words "relevant prosecutor", but that still means the prosecution authority such as a Secretary of State or another relevant prosecutor.

So it is for the prosecutor to decide whether a conditional caution should be granted, but it is then for someone else to administer it, who will be the "authorised person" referred to in Clause 22(4). That person must have the evidence that the offence has been committed, as set out in the first requirement in Clause 23(1); must be the person to whom the offender has admitted the offence; and must be able to give explanations. However, it is not for the police officer to decide that there should be a conditional caution; that is a decision for the prosecutor.

No doubt the police officer may well propose appropriate conditions, which would be right given that he will know the circumstances of the offence and something about the offender. But it will be for the prosecutor, in general for the Crown Prosecution Service, to confirm those conditions and determine that a conditional caution is appropriate. The administering of the caution is then a duty for the officer and, viewed in that light—which expands on what was said by my right honourable friend the Solicitor General, Harriet Harman, in another place—I hope that the noble Lord will agree that it would be inappropriate to require officers of the rank to which he referred to spend their time administering cautions when the decision has already been taken by the prosecutor. It would be entirely appropriate for the administration of that decision to be undertaken by the officers identified in the clause as it stands.

I hope that my explanation—that the decision will be made by the Crown Prosecution Service or another prosecutor rather than the police, and that the caution will be administered by the police officer—will assist the noble Lord.

Lord Elton: In my view that was an extremely helpful explanation. However, is the noble and learned Lord able to tell us something of the length of time that all this is going to take? Presumably there has to be an arrest, followed by a referral to the prosecutor, whoever that may be. That person then has to be apprised of the details of the crime and come to a view on them. Will that be done with or without an interview with the young person in question—I assume that the person will be young? Surely it would be very

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difficult to make a judgment on whether the person is likely to respond to this treatment without an interview.

I am finding it difficult to express this concern, but essentially the slower the administration of justice, the less effective it is, in particular when dealing with young people whose perception of the flow of time is quite different from our own. This process needs to move relatively quickly or cause and consequence will be completely separated in the mind of the offender.

5.15 p.m.

Lord Goldsmith: These provisions apply to adults, that is, persons aged 18 years or over. Youth offenders are dealt with under an existing set of provisions.

So far as timing is concerned, this will fit in with other changes being made in the Bill, including in particular the closer involvement of the Crown Prosecution Service with the police. In due course we shall come to the charging provisions set out in the Bill under which, save in routine and minor cases or where a holding charge is needed, it will be necessary for the police to bring the evidence to the prosecutor for him to decide whether a charge should be brought and, if so, what it will be. Moreover, in many cases there will be a prosecutor at the police station, ready to receive the police officers and to make the decision. So, in some cases, it will add nothing to the time for the police officer and the prosecutor to consider whether, having regard to the circumstances, the case might be appropriate for the administration of a conditional caution.

I agree with the noble Lord that we do not want to slow justice down, but I believe that the arrangements here ought not to have that effect and certainly ought not to do so to the extent that they would outweigh the advantages of this new way of disposal.

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