Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Hodgson of Astley Abbotts moved Amendment No. 26:

The noble Lord said: My Lords, in moving Amendment No. 26, I shall speak also to Amendments Nos. 27 and 28. They all relate to Clause 22—dealing with "The five requirements"—which was peripheral to our discussion on the previous amendment. The process of handing out a conditional caution requires that the five requirements be fulfilled. Amendments Nos. 26 and 27 would ensure that the offender is given the opportunity to take appropriate legal advice before agreeing to the caution. Amendment No. 28 deletes the subsection which would enable the document of the caution to be used against the offender.

Once again, we discussed this matter in Committee, at col. 668 of the Official Report on 14th July. The Government explained that legal advice would be offered and that the issue would be covered in revised guidelines to the PACE regulations. The noble and learned Lord the Attorney-General suggested, with honeyed words, that the clause would become unmanageably large if it included everything that was relevant, which was already covered in the PACE codes. One appreciates the force of that argument.

However, the clause introduces an entirely new type of punishment, which has a direct impact on civil liberties. The amendments would increase the length of the clause, but negligibly. However, they increase its clarity on the critical point of the need to be offered legal advice without the complexities of cross-referencing to the PACE regulations.

We do not wish to replicate all the relevant parts of the PACE regulations in the Criminal Justice Bill. The addition of Amendments Nos. 26 and 27 would act as a failsafe and would not leave this fundamental provision open to any doubt. If Amendments Nos. 26 and 27 should be accepted, we would not wish to move Amendment No. 28. I beg to move.

Baroness Kennedy of The Shaws: My Lords, in support of this amendment, perhaps I may mention a number of points of which the House may not be aware. Even when someone is cautioned, if an issue of

29 Oct 2003 : Column 357

character arises in a criminal case, the caution is placed before the jury. Many people do not understand that. Many people imagine that if issues of character are raised, it is only previous convictions that will go before a jury. But a caution, too, goes before a jury if an issue of character is raised. That therefore has serious consequences.

It is for that reason that the issue of having at least the opportunity of access to legal advice could matter. If access to legal advice is not allowed, a person who may be agreeing to a caution should at least be warned that if, on any subsequent occasion, he comes before a court, the caution may be placed before the court as a material feature that might be considered in evaluating evidence. That has serious consequences and it is not a matter without implication. It is for that reason that I raise the matter with the Minister and ask that he might give it some consideration.

Lord Goldsmith: My Lords, I shall turn immediately to the issue raised by my noble friend Lady Kennedy of the Shaws. I entirely understand the point that she made about the significance of a caution; one might say, not just for the reason that she gives. Clause 22(4) will require that the person—I hesitate to use the word—giving or administering the caution should explain its effect to the offender and warn him that failure to comply with any of the conditions may result in prosecution. That much is clear.

However, the code of practice proposed under Clause 24 will also contain certain matters. I shall be happy to ensure that consideration is given in that code to whether this is something that should be dealt with. The code of practice must come back to Parliament, so at that stage we shall be able to see how the matter is dealt with. I hope that I have been able to give an assurance to my noble friend that the good point she has made will be considered in that way.

I turn now to the substance of the amendment. The first point I wish to make is that before a suspect can have made the clear admission of guilt, which is a prerequisite for a caution, he or she must have been informed of their right under the PACE code. It is not a question of cross-reference to the PACE code because one simply does not reach this stage without the admission having been made. Because of the requirements of PACE, that will have required the right to independent legal advice having been identified and the person told of it.

Thus, no one can reach the stage of a conditional caution without having had the opportunity to obtain advice. Further, I draw attention to the fact that Clause 22(3) identifies as the third requirement that the offender admits to the authorised person that he committed the offence. So there will have been an interview, the suspect will have been told of his right to legal advice and may well have availed himself of it—that is his or her choice—and all that will happen in any event.

At that stage the advice might cover the pros and cons of a conditional caution, if the matter is raised at that stage. If it is not, then the next question is whether

29 Oct 2003 : Column 358

a suspect who returns to the police station on a subsequent occasion and is then offered a conditional caution—it is always an option which can be refused—would have access to legal advice about whether or not to accept it. Under the current arrangements, advice and assistance would be available through the attendance of a solicitor or by telephone. A suspect who had taken the opportunity to seek advice at interview would generally be expected to seek further advice from the same solicitor. Obviously, that would make sense.

It is right to say that, under the proposals being considered, a suspect would not qualify to receive advice from a solicitor attending the police station, but would continue to be able to obtain such advice over the telephone. So the advice will be made available in any event: at the initial interview, with further availability at least by telephone if the suspect returns to the police station and is there offered a conditional caution. That is why the Government do not consider it necessary to put on to the face of the Bill a provision that legal advice is a specific requirement for the issue of a caution because that advice is going to be available in any event.

I turn to Amendment No. 28. The noble Lord, Lord Hodgson, pointed out that this amendment would not be pursued if Amendments Nos. 26 and 27 were accepted. Of course they are not accepted, so I should deal with this amendment.

The provision set out in Clause 23(2), to which the amendment refers, is that the document referred to in Clause 22(5) is to be admissible as evidence. It is right to distinguish between the two different admissions. There is the admission referred to in Clause 22(3), and there is the admission which is written into the caution. A suspect does not reach the stage of a caution unless he has already admitted the offence. Of course, that particular admission will be admissible because it would have been obtained in circumstances where the PACE codes have been complied with, otherwise one could not reach the stage outlined in Clause 22(2)(a); that is, of the prosecutor being in a position to say that there is "sufficient evidence to charge". The initial investigative process must have been gone through and completed.

Thus a prosecution could not be founded on the caution document itself. It might be founded on an admission made in interview—that is possible—but not on the document itself. The caution document will outline the effects of non-compliance and will state clearly that it might be used in evidence against the person if criminal proceedings were to follow.

There is no need to exclude Clause 23(2). Indeed, that could give rise to problems. It may well be necessary in subsequent proceedings to consider whether or not the terms and conditions had been complied with and the defendant might, for example, say that he had complied with them and that he should not be brought back to court. So the terms of the document itself would need to be admissible in those circumstances.

29 Oct 2003 : Column 359

I hope the noble Lord is reassured by the fact that, if it should turn on admissions, the key admission will be the admission that had been made before and not the admission put into the caution document.

Lord Hodgson of Astley Abbotts: My Lords, I am grateful to the noble and learned Lord. He has been very clear and explicit about the fact that a suspect will not be able to go through the procedure without obtaining the relevant legal advice, a point which we wanted to have clearly on the record. I understand the points he made about Amendment No. 28 in regard to Clause 23(2). Our preference was to make matters explicit.

I am grateful to the noble Baroness, Lady Kennedy of The Shaws, for her intervention and for broadening my non-existent legal knowledge. Having said that, the Attorney-General has been very clear about the way the system will operate. We are reassured by that and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 27 not moved.]

Clause 23 [Failure to comply with conditions]:

[Amendment No. 28 not moved.]

Clause 24 [Code of practice]:

Lord Hodgson of Astley Abbotts moved Amendment No. 29:

    Page 18, line 7, at end insert ", in particular the role of the probation service"

The noble Lord said: My Lords, in moving Amendment No. 29, I shall speak also to Amendment No. 30. The amendments relate to Clause 24 and the codes of practice relating to conditional cautions.

Amendment No. 29 seeks to include the probation service in the fine-tuning of the conditions that are to be set. We discussed this issue in Committee on 14th July (at col. 678 of the Official Report) when a good deal of concern was expressed. The noble and learned Lord the Attorney-General explained at that stage that he wished to resist the inclusion of the probation service as a reference point but added:

    "I hope that noble Lords will accept that I do not wish to say any more until I am able to give a more detailed and considered answer".—[Official Report, 14/7/03; col. 679.]

We have since received a very helpful explanatory letter from the noble and learned Lord, which runs to more than three pages. It goes a long way to answering the concerns raised in Committee. I hope that the noble and learned Lord will not consider me too churlish if I make two points about the letter.

The first point concerns its timing. My e-mail in-box shows its receipt as timed at 12.42 p.m. on Wednesday 29th October—that is today, about eight hours ago. It is practically impossible for us to give proper consideration to the points raised in the letter—there are quite a lot of them—and, in particular, to consult with interested outside parties to obtain their comments and reactions. Many noble Lords will regard such discussions as being part of the scrutiny process of the House. It would have been helpful if we

29 Oct 2003 : Column 360

had received the letter a little earlier. After all, the Committee stage on this part of the Bill took place on 14th July, three-and-a-half months ago.

Secondly, I draw the noble and learned Lord's attention to a sentence at the bottom of the first page of the letter, which states:

    "Three things will be crucial to maintaining the integrity of conditional cautioning. First, there is the detailed guidance on the use of conditional cautions which is in the course of preparation".

This is precisely the point. It was the absence in Committee of the detailed guidance that led to many of the concerns in our debate, and the guidance is still not available.

So many Bills in the current Session and recent Sessions have been what one might call framework Bills. The Licensing Bill is one example. The detail, the flesh and blood of the legislation and its practical application for our society depend on regulations, codes, guidance notes, and so on. I ask the noble and learned Lord if the Government could make a greater effort to ensure that Bills come forward for our scrutiny fully fledged, and not just in outline. Whatever our partisan political viewpoint, we surely can agree that we want legislation that is clear and unambiguous. Such an outcome is best achieved when Bills have been well scrutinised, and we need the detail as well as the framework to achieve this.

Having got that off my chest, I now turn to Amendment No. 30, which would insert a new item into the clause highlighting the consideration that should be made when writing up the codes of practice for those with mental problems. This is rehearsing some of the arguments we had on Amendment No. 20. Amendment No. 30 anticipates the possibility of unfair or unachievable conditions being given to an offender who has mental problems and agrees without fully understanding the consequences.

We are bringing the amendment back at Report because we feel the noble and learned Lord gave unduly short shrift to the arguments in Committee, believing that the amendment would add little to the existing paragraphs. However, despite having read through them carefully, I cannot see anything that deals directly with the character of the offender in any of the existing paragraphs of Clause 24(2). I suppose it could be suggested that subsection (2)(f), which refers to,

    "the form which such cautions are to take and the manner in which they are to be given and recorded"

covers someone who has a mental problem, but I find it hardly explicit—in fact, I find it hardly implicit. The inclusion of a further paragraph, drawing specific attention to the importance of proportionality and appropriateness would add an important dimension.

It is in eager anticipation of what the noble and learned Lord will say to us about Amendment No. 31 that I sit down. I beg to move.

29 Oct 2003 : Column 361

9.15 p.m.

Lord Goldsmith: My Lords, I am grateful to the noble Lord. I will speak to Amendments Nos. 29 and 30 and also to Amendments Nos. 31 and 32 in the name of my noble friend Lady Scotland of Asthal.

We had an important discussion in Committee about how conditional cautioning would work. A lot of work has been done since to put flesh on that. I chaired a meeting and spoke to the head of the probation service about the points which had been raised. That has resulted, as the noble Lord has been good enough to say, in being able to give much more information about how conditional cautioning will work, and I shall shortly put that information on the record.

I entirely accept the noble Lord's point about the information being sent late to him and other noble Lords. I am glad that they have had it; there will of course be an opportunity to discuss much more about this when the code of practice comes to Parliament. Indeed, in the light of the pilots to which I shall refer in a moment, the code may well need to come back to Parliament, so there will be another opportunity. I say that because of the point that the noble Lord very properly makes about the desirability of and need for scrutiny. In any event, he is absolutely right that it would have been better if that letter had been received earlier, and I am sorry that it was not.

That being said, may I say a little more about the way in which the conditional cautioning scheme is proposed to be implemented? I see the scheme as a very valuable addition. It will help to keep people out of criminality and away from having to go to court; it will do something with their offending, help them and, one hopes, help victims too.

There will be scope for geographical variation, which need not be implemented in the same way in every area. It will provide a framework in which the provisions can operate and, particularly, for developing what could turn out to be innovative community justice schemes. The local criminal justice boards that we have established could play an important role.

The intention is to bring the provisions into force next April on the basis that it will then be possible for police and prosecutors to use conditional cautions when it is practicable to do so without special training. They could be used in the sort of relatively straightforward—or very straightforward—case, such as one in which the offender is asked to pay a small and readily ascertainable sum in compensation or attend a self-help group. That would be straightforward. There could be more complicated cases, which I want to deal with separately. However, conditional cautions of that simple kind, which would require little by way of training for the police or the CPS could start to be given nation-wide as soon as the provisions in the Bill are implemented. Therefore, we propose to set up pilots in six areas where we would monitor: the use of conditional cautions and evaluate the effect on the number of prosecutions; the extent of compliance with conditions; enforcement costs; success in terms of reconviction rates; and victim satisfaction.

29 Oct 2003 : Column 362

We also believe that conditional cautioning could be used to deliver more sophisticated restorative justice solutions. That is potentially very exciting, as it would involve bringing victims and offenders into direct or indirect contact, where they want that, to discuss the crime and its effects, leading to outcome agreements in which the parties agree what the offender will do in response to the crime. The Government have recently produced a strategy document on that matter. It is a very interesting area that is not without its issues for some people. I have seen it in operation personally and have seen how beneficial it can be, but I also recognise that one must overcome certain hurdles. The outcomes might be compensation, reparation, rehabilitative activities or a formal apology.

The evidence certainly shows that restorative justice can reduce reoffending and improve victim satisfaction with the criminal justice system. Conditional cautioning offers a potential way in which to deal with the problem, but it cannot be done without training. We would clearly have to assess the results before we could recommend the approach on any great scale. We intend to test that use of conditional cautioning in two pilot areas, where we provide funding to train officers in using restorative processes. Those pilots would start when the general scheme is implemented and would be evaluated after a year of operation. That gives more of the flesh on how we would like to proceed.

Those provisions give rise to discussions about the National Probation Service, whose possible role we discussed in Committee. We plainly recognise that conditional cautions need to be properly used and robustly monitored. In the generality of cases, it is unlikely for that to be a priority for the probation service. However, in some cases there is scope for the service to play a useful role in assessing perhaps how suitable certain offenders are for a conditional caution, or in monitoring the performance of certain outcomes. This would depend on local circumstances and on the availability of funding.

I said in Committee that we did not consider the probation service was able to take on that role as its functions presently existed. That is why we have introduced the amendment. At the moment, its powers are limited to cases in which people have been charged with or convicted of an offence. That would not apply to conditional cautions, as it would not be the case as regards the people with whom we are concerned. We want to remove that statutory obstacle, which is the purpose of Amendment No. 31.

The amendment makes clear that the duties of the service extend to giving assistance to authorised persons in determining whether conditional cautions should be given, which conditions should be attached to conditional cautions and the supervision and rehabilitation of persons to whom conditional cautions are given.

I turn to the question of the code of practice. I am sorry that the noble Lord, Lord Hodgson of Astley Abbots, thought that I gave short shrift on the last occasion to the point that he made. It is not that I do not agree that in deciding whether cautions should be

29 Oct 2003 : Column 363

given in a particular case one has to have regard to whether it is appropriate in that case; of course, that is right. But it seemed to us then—I regret to tell the noble Lord that it seems to us still—unnecessary to add to the list of things to be put into the code of practice a reference to the role of the probation service or a new item about deciding the appropriate conditions. I repeat what I said on the previous amendment; namely, that the code will have to come before Parliament and then one will see—I hope that noble Lords will agree—that it will be helpful and will adequately cover the areas which noble Lords think should be covered.

I turn finally to Amendment No. 32. There is a minor anomaly at the moment that while the Director of Public Prosecutions and the Serious Fraud Office are included in the list of relevant prosecutors who can decide whether a conditional caution should be given, the Attorney-General for some inexplicable reason has been omitted from the list. While I personally doubt that it is a privilege of which I or my successors will wish to avail ourselves, we ought at least to be given the option. That is the reason for putting that measure forward, which I hope will not be controversial.

Next Section Back to Table of Contents Lords Hansard Home Page