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Lord Hodgson of Astley Abbotts moved Amendment No. 85:

The noble Lord said: Amendment No. 85 is a simple amendment to be inserted at the end of subsection (1) of Clause 24. That subsection explains that the consequences of failing to comply with the provisions of the conditional caution may, as we have just been discussing, result in prosecution. With the Bill as presently drafted there is no time limit within which such a prosecution must be proceeded with after a breach of the conditions of the caution has occurred. It seems only fair that a recipient should know how long criminal proceedings could be left hanging over him. This amendment sets the limit at three months. It is a probing amendment and it would be helpful to hear the Government's thinking behind the proposal for what appears to be an everlasting sword of Damocles.

The Liberal Democrat Amendments Nos. 87 and 88 in the names of the noble Lords, Lord Thomas of Gresford and Lord Dholakia, seem to take us back to the issue of admissibility in evidence of the signed admission in Clause 23(5) which we were discussing in the last group of amendments. As such, if there is no requirement for a person to receive legal advice in advance of any signature, we would support them. I beg to move.

Lord Dholakia: This amendment is grouped with Amendments Nos. 87 and 88. Clause 24 provides that, if the offender fails, without reasonable excuse, to

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satisfy the conditions attached to the conditional caution, he or she may be prosecuted for the offence—not for the breach of the offence, but for the offence itself. If proceedings are commenced the document referred to in Clause 23 is admissible in evidence. I remind the Committee of the requirements of Clause 23, which the noble Lord, Lord Hodgson of Astley Abbotts, mentioned earlier on. They are that there is evidence against the offender; that the Crown Prosecution Service considers the evidence to be sufficient to charge him or her and that a conditional caution should be given; that the offender admits the offence; that the offender has been made aware of the caution and what failure to comply with it would mean; and that he or she signs a document containing details of the offence, the admission, the offender's consent to the caution and the conditions imposed.

We have a very serious problem with that. The problem is simply that all this evidence is being produced as part of the prosecution case against the individual. If the person appears in court for trial he cannot plead not guilty. In other words, the trial is simply a sentencing exercise, rather than giving him the opportunity to deny something that he has already admitted under caution. We are suggesting that for a fair trail—for a fair system of dealing with such individuals—it would be proper to ensure that two provisions are included in the Bill: first, that the conditional caution should cease to have effect and, secondly, that the admission contained in the document referred to in Clause 23(5) shall be inadmissible in evidence. That is the basis of holding a fair trial, rather than simply sentencing an offender and calling it a prosecution.

5.45 p.m.

Lord Goldsmith: I will take those two sets of amendments separately. Amendment No. 85, moved by the noble Lord, Lord Hodgson of Astley Abbotts, would insert a time limit of three months after the commission of the offence into Clause 24. The effect would be that where an offender failed to comply with the conditions attached to a caution, a prosecution against him or her would have to be commenced within three months of the date of the offence.

In the Government's view that time limit would be unduly restrictive. There are two reasons for that. First, the date on which the caution is administered could itself be some significant time after the offence. The reason for that may simply be that it took that time to find the offender. Secondly, even if the offender had been caught the very day of the offence and a conditional caution had been imposed within a short time thereafter, there will be some conditions which will take some time to organise and may take some time for the offender to complete. The previous discussion on an earlier clause in relation to the time to organise and then to complete some kind of drugs rehabilitation course would be one example. To say that one must prosecute within three months or else the condition falls by the wayside because there is no way of enforcing it would be unduly restrictive.

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There is a long-stop already in relation to offences that are summary-only offences because, as the noble Lord will recall, those offences cannot be prosecuted more than six months after the commission of the offence. That is already something of an issue in relation to conditional cautions because it may be that that in itself imposes an unduly restrictive period. However, that is the law and we are not suggesting changing it. We agree that it would not be right to impose conditions for an unreasonable time—a Damoclean time or otherwise—and that is why the time for which a condition may have effect is one of the points that will be addressed in the code of practice, as Clause 25(2)(c) indicates. As for the three-month period, we could not accept that. However, the noble Lord said that his was a probing amendment in any event.

I turn to Amendments Nos. 87 and 88 to which the noble Lord, Lord Dholakia, spoke. I have largely answered this already, but I think it is right to draw attention to the requirements in Clause 23. The Committee will note that among the requirements is not only that there is evidence that the offender has committed the offence, but also that the offender admits that he committed the offence. That is before one gets to the conditional caution being signed. So it is a condition that in an interview, itself under caution, the offender will no doubt have admitted the offence. That will be entirely admissible, as it would be even if the result of the interview had been the police officer saying, "You will now be taken to court," rather than, "We will now consider a conditional caution". That would be part of the evidence on which the offence would then be prosecuted. The signature on the document does not add an enormous amount to that because the admission will already have been made but—and this is more important and is the answer I gave before—it will be necessary to demonstrate, because of the conditions of Clause 24(1), that there were conditions attached to the conditional caution and the document signed by the offender, accepting those conditions, will be an important part of that.

In the Government's view it is appropriate to keep the provision that the document shall be admissible in evidence; otherwise, one would have the ridiculous situation of, for example, an officer saying, "What were the conditions? Let me read from my notebook. Did he accept them? Yes, he did," and the person saying, "No, I didn't", when there is a document available which proves it.

I hope that the fact that the caution will not have been authorised or administered unless the offender had admitted he had previously committed the offence will go a long way to satisfying the noble Lord. Of course there must be a fair trial where someone has, under caution, admitted the offence. There may be circumstances in which they can thereafter say, "I didn't really mean it" or "I didn't know what I was saying". They will no doubt be able to run that

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argument, but, generally speaking, the fact that it has been said under caution will obviously be powerful evidence against them, and rightly so.

Lord Elton: What the noble and learned Lord says underlines the importance of this document in the trial of the individual concerned and brings us back to my noble friend's question about the availability of legal advice. Knowing what the conditions are in a police cell and the state of the people who are kept in them makes me anxious about merely having had advice, which is the argument my noble friend advanced in debates on previous amendments. I hope that we may have an opportunity on Report to consider whether such a document should be signed in the absence of a legal adviser. Merely having had advice, perhaps a fortnight earlier, and being confused as to what the document is may not be sufficient protection.

Lord Goldsmith: Clause 25, to which we will come shortly, provides for the preparation of a code of practice which will deal with a number of matters, including, as paragraph (a) states,

    "the circumstances in which conditional cautions may be given".

That has to be prepared in draft by the Secretary of State. It has to have my consent; it then has to be laid before each House of Parliament and an order has to be made. My recollection is that this is by affirmative resolution as well, so a number of the points to which the noble Lord refers will no doubt be touched on in the code of practice, which will come back before the House.

Lord Elton: I am grateful for that; my noble friend assures me that the noble and learned Lord is right about the affirmative procedure, which is not clear in the clause. If that is the case, my anxiety is removed.

Lord Hodgson of Astley Abbotts: I am grateful to the noble and learned Lord. As I said, this was a probing amendment, and we are grateful for his assurance that conditions on cautions cannot be left hanging for ever, but that there is a provision for their being ended.

We are a little concerned about the way in which the noble and learned Lord's responses indicate the time that may elapse in these matters. Conditional cautions need to be moved through reasonably rapidly if they are to have a good deterrent effect. Speed seems quite important and if conditional caution proceedings are to be as prolonged as custodial proceedings, that will undermine some of their value. However, this was a probing amendment—we were not stuck on the three-month idea, and I understand the Attorney-General's argument against it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 86 to 88 not moved.]

Clause 24 agreed to.

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Clause 25 [Code of practice]:

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