Criminal Justice Bill

HL Deb 14 July 2003 vol 651 cc645-99

4.1 p.m.

The Attorney-General (Lord Goldsmith)

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Goldsmith.)

On Question, Motion agreed to.

House in Committee accordingly.

[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Carter) in the Chair.]

On Question, Whether Clause 18 shall stand part of the Bill?

Lord Dholakia

We had considerable discussion on this matter during the second day of Committee. I shall not detain the House much longer. Clause 18 amends Section 1 of the Bail (Amendment) Act 1993, so that the prosecution's right of appeal to the Crown Court against a decision by magistrates is extended to cover all imprisonable offences. This is about bail provision and not about sentencing.

Clause 18 would extend to all imprisonable offences the prosecution's right of appeal to the Crown Court against a magistrate's decision to grant bail. We were impressed by the representation made to us by the London Criminal Court Solicitors' Association, as mentioned during discussion on this clause during the second day of the debate.

In any application for bail, the prosecution puts forward objections to bail and the reasons for those objections before the defence makes its application. The prosecution already has rights of appeal against bail granted in the more serious cases. If the Government want to restrict bail further, they should produce evidence that the public is put at avoidable risk by the operation of the law as it now stands. We are aware of no such evidence produced by the Government.

This clause is likely to clog our courts even further. More importantly, it is also likely to clog our prisons with people who could usefully spend time on bail rather than on remand in custody. Evidence on the Continent suggests that wherever you make sparing use of remand provision, it helps in terms of the prison population. Taking almost every imprisonable offence and giving the right to the Crown prosecutor for refusal of bail by the Crown Court will only add to the problem of our prison population.

Lord Goldsmith

I am grateful to the noble Lord, Lord Dholakia, for raising those points. We discussed the matter in large measure on the previous day in Committee when an amendment was put. I would therefore prefer the Committee to read what I said on that occasion at cols. 120 to 121 of the Official Report for 7th July and I shall simply summarise the position. The noble Lord, Lord Dholakia, asked what is the evidence that it is necessary to make a change. The statistics demonstrate that as many as one in four defendants granted bail go on to commit an offence of which they are convicted during the period of bail. Secondly, as many as one in eight of those granted bail fail to attend for the trial, which causes great inconvenience to witnesses and victims who have turned up, as well as cost and delay in the courts. In the Government's view, the evidence exists that it is necessary to look carefully at bail and when it is granted in order to protect the public.

However, as I said, while the intention of the clause is that there should be a right of appeal, it will be exercised sparingly. Again, I refer to what I said on the previous occasion, drawing attention to the fact that the Crown Prosecution Service, for which I have ministerial responsibility, recognises that the right to take a case to appeal should be used judiciously and responsibly. That is set out in the internal guidance, which looks principally to see whether the public need protecting from the defendant in deciding whether or not to make an appeal against bail. It is not for the Crown Prosecution Service to decide whether bail should or should not be granted. That will be for the court to decide. That is the purpose of the appeal. I hope therefore that that is of some reassurance to the noble Lord.

Lord Dholakia

I am grateful to the Minister. We decided to object to the Question that the clause shall stand part simply because on the previous day in Committee we supported an amendment relating to serious cases attracting two years' or more imprisonment. Here we have a blanket authority for Crown prosecutors. However, in the light of what the Minister said, I withdraw my objection.

Clause 18 agreed to.

Clause 19 [Drug users: restriction on bail]:

Lord Hodgson of Astley Abbotts moved Amendment No. 71:

Page 14, line 17, leave out "not" and insert "only"

The noble Lord said: In moving Amendment No 71, I shall speak also to Amendment No. 72. The two amendments relate to Clause 19, which concerns the restrictions on bail for drug users. Specifically, subsection (4) deals with supplementary provisions about bail and makes special exceptions applicable to drug users. This amendment ties in with our Amendment No. 70A to Clause 18, which we discussed at our previous meeting in Committee. It sought to question the Government's proposal to reverse the presumption to bail except for serious crimes. Amendment No. 71 again highlights the change of emphasis underlying this Bill with a shift towards presuming against bail.

In our view, the emphasis of subsection (4), new Section 6A, is entirely negative—half empty as opposed to half full. This is the wrong approach and may well have human rights implications. The onus should not be on the defendant to satisfy the court that he has a right to bail. It is rather for the prosecution to make out a case for refusing bail. The amendment proposed is to replace "not" with "only" and "unless" with "if" in the sentence, a defendant who falls within paragraph 6B below may not be granted bail unless the court is satisfied that there is no significant risk of his committing an offence while on bail". Amended, the sentence would read, a defendant who falls within paragraph 6B below may only be granted bail if the court is satisfied and so forth. While the amendment is not designed to, nor will it, bring about any fundamental change to the judicial system of our country, this alteration, perhaps seemingly technical, will help to ensure that the justice system remains balanced and fair. I beg to move.

Baroness Walmsley

At the end of discussion on these amendments in another place, the conclusion of the parliamentary draftsman was that they made no difference to the meaning of the provision in the Bill. We will therefore not be supporting them.

Lord Goldsmith

The noble Baroness, Lady Walmsley, makes my point for me. It is the view of parliamentary counsel that there is no difference between saying that a defendant may not be granted "unless" and saying a defendant may only be granted "if". As it does not seem to us that this makes any difference, I, too, resist this amendment I invite the noble Lord to withdraw it.

Lord Hodgson of Astley Abbotts

The world of parliamentary draftsmanship is always a strange one. To replace "not" by "only" and "unless" by "if' seems to me to make quite a difference in the way the clause will be interpreted. As the noble Baroness says, this has been raised once before. As it is now on the record again, I beg to leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 72 not moved.]

On Question, Whether Clause 19 shall stand part of the Bill?

Baroness Walmsley

I oppose Clause 19, which is designed to provide a presumption against bail for alleged offenders shown to be drug abusers. This provision does not appear to follow from either the Law Commission report or the Auld report. The courts already have a great deal of discretion as regards bail. This clause goes against the spirit of the Bail Act, is unnecessary and may well be overturned by the courts. Also, during its discussion in another place, the drafting of the clause attracted considerable criticism. I shall explain why I believe it should not stand part of the Bill.

I accept that, as quoted in the Government's paper, Criminal Justice. The Way Ahead, drug-addicted defendants can be extremely prolific in their offending. Offenders using heroin or crack cocaine are estimated to commit property offences at twice the rate of offenders who do not use drugs". I also accept the evidence of the deputy commissioner of the Metropolitan Police, who quoted figures that suggest that there is currently a very low level of voluntary uptake for treatment. He said: In the Hackney pilot of compulsory drug testing for everybody brought into the police station and charged, it is 62 per cent testing positive for opiates. Yet only seven per cent of those people agreed voluntarily to any form of drugs referral scheme after arrest". The policy is supposed to he encouraging hard drug users to undergo treatment, not forcing them to do so. To use compulsion in the current climate of provision is both impractical and unfair as well as breaching the human rights of the defendant.

Let me deal with the practicalities. The Home Affairs Select Committee in another place said that whether Clause 19 will work in practice is dependent on two things: first, the ability to enforce the bail condition; and secondly the availability of treatment to which the bail condition relates. On the first point, the Association of Police Authorities has highlighted some potential problems. In some pilot areas, a "large percentage" of those who test positive for class A drugs do not comply with drug treatment orders, thus ending back in court for re-sentencing". There must therefore be considerable doubt about the practicality of enforcing such conditions against drug users who consent to the bail condition but then fail to comply with the treatment.

On the second point, the committee was pleased to note that the provisions under Clause 19 will apply only in areas within which treatment is available. Therefore a person, could not be refused bail simply on the basis that he had refused treatment where there was not treatment available". As the Minister conceded in evidence to the committee, there is not enough treatment available at the moment. The committee was informed that in one police area, there is an eight-month waiting list for detainees willing to submit to treatment. I wonder if the noble and learned Lord can tell me whether that situation has improved in the few weeks that have passed since that was said.

In the end, while the committee supported the proposal to impose a treatment condition on the hail of drug users, it said it is essential that sufficient resources are made available for the provision of treatment. To decide whether this clause is justified we need to look at how effective current treatment programmes are in reducing drug misuse and related criminal activity. We need to look also at the quality and availability of these programmes. Here I must declare an interest as a trustee of Adapt, a drug and alcohol treatment and rehabilitation charity.

A few weeks ago we had an Unstarred Question in your Lordships' House about drug treatment services. During that debate many noble Lords drew attention to the fact that there has been little or no increase in the number of drug rehabilitation and treatment beds in the past 10 years. This is despite the fact that all the research shows that residential drug treatment is the most effective kind. This takes the user away from the pushers on his own street corner and gives him a chance to detox properly and to come to terms with the issues in his own life which led him into drug abuse in the first place. I say he, although I really mean he or she. Many drug addicts are women and there is a real issue about the lack of availability of good quality treatment services for women with dependent children.

Sadly, although the Government have increased the money available for drug treatment, there are two major problems. The first is that the money is going into administrative posts and bureaucracy in the drug action teams instead of into treatment services. The second is that the Government are playing the numbers game and setting targets for the number of people in treatment instead of the number of addicts that come off drugs and stay off drugs. In these circumstances, agencies will choose the cheaper community option so that they can spread the money further and hit the targets for the number of people receiving some sort of treatment. If they had a target for the number of people who actually got off drugs, the picture of how they spend the money would be very different. In this situation, it is unjust and unworkable to make it a condition of bail that a defendant accepts an assessment and treatment. He or she may have tried one of these ineffective programmes before and failed and be justifiably afraid of failing again. As was said about this issue in another place, drug treatment is a bit like dieting. One has to be ready to do it before starting out and one size does not fit all. Going through detox, treatment and rehab is a very difficult process and all drug users know it. All fear failure and failure can be painful and damaging. No wonder drugs experts fear that the imposition of such a condition of bail will be a negative rather than a positive move.

My second concern is to do with human rights. Liberty has been in touch with a number of your Lordships about this clause, telling us that it raises issues under Article 5 of the Human Rights Act 1998, on the right to liberty and security of person. It does not fit into one of the permitted exemptions under Article 5(c). Although detention of drug addicts is permitted under Article 5(e), Liberty disputes that this justification applies to a person detained pending trial. The presumption by the Government seems to be that drug users commit offences, therefore anyone who refuses treatment will be likely to commit offences while on bail and should therefore be refused bail. It is a principle of justice that every bail application should be considered on a case-by-case basis. The introduction of a presumption against bail in Clause 19 places the burden of establishing an entitlement to bail on the detained person rather than the state—guilty until proved innocent rather than the other way round.

The Law Commission considered this in its publication Bail And The Human Rights Act, which concluded that such a reverse burden could breach Article 5(3). Liberty also argues that Clause 19 may raise issues under Article 8 of the Human Rights Act, on the right to respect for privacy and family life. This clause places an obligation on a person who has not been convicted of any offence to undertake drug treatment to avoid being remanded in custody. Liberty appreciates that the Government are concerned that there is a link between crime and drug use and that they are promoting drug rehabilitation. However, Liberty does not accept that applying a sanction that will involve the loss of freedom is an acceptable way of promoting such a policy. I agree.

4.15 p.m.

Lord Hylton

The noble Baroness, Lady Walmsley, has made out a very strong case. I trust that the Government will not just brush it aside. It is a pretty lamentable state of affairs when those who want to come off drugs may have to wait for up to eight months before they can obtain treatment. We all know that treatments for whatever kind of addiction—drugs or some other type—are unlikely to be successful in the long run unless the person being treated undergoes it voluntarily and has, or acquires, an intention to stick with the treatment and put it into practice after it has finished. The noble Baroness said that bail should be treated on a case-by-case basis. I entirely agree, and I hope that that point of view will secure a little more support from your Lordships.

Lord Maginnis of Drumglass

I had not intended to speak on this issue until I heard the previous two contributions. While I have tremendous sympathy for the objectives of the noble Baroness in seeking treatment facilities for drug offenders, I remind the Committee that drug users are among those with the highest rate of offending against elderly people. In my own constituency, two elderly people—one, an 87 year-old widow—were recently attacked physically by drug users in pursuit of money to finance their habit.

However lacking we are in treatment facilities, I believe it is wrong to use the human rights argument solely to defend the person who has infringed the law. We forget about the multitude of elderly and vulnerable people who are victims of drug users. They also have human rights, and those rights should be taken into consideration.

The question as to what makes a person a drug user concerns a different issue and one that can be addressed at a different time. But it is wrong to try to ensure that the provision relating to drug users who offend is such that they are not removed from society when it is apparent that they are a danger to society. Therefore, I support this part of the Bill and, if the Committee divides, I shall support the Government on this issue.

Lord Hylton

My noble friend may have probability on his side in relation to attacks by drug users on elderly people. However, I am surprised that he does not want to see bail decided on a case-by-case basis rather than being pre-empted by government legislation.

Lord Goldsmith

I believe that it is right to start by reminding the Committee that this clause amends the Bail Act 1976 to create not an irrebuttable requirement but a presumption against court bail for an adult who is charged with an imprisonable offence, who has tested positive for a specified class A drug and who refuses to be assessed as to dependency upon or propensity to misuse such drugs or who, having under undergone such an assessment, refuses to undergo relevant follow-up action.

I say that that is a presumption because the clause is quite clear, whether in the formulation in which it stands or in the formulation in which the noble Lord, Lord Hodgson, would have it. It is for the court to be concerned with the case on a case-by-case basis but, in the context of this type of defendant, it must decide whether there is a significant risk of his committing an offence while on bail. If there no such significant risk, then the provisions will not apply. As I had cause to note on the previous day in Committee, it is entirely accepted within the human rights legislation that one good ground for refusing bail will be that there is a risk of re-offending while on bail.

The noble Baroness, Lady Walmsley, rightly said—I am grateful to her for this—that there is a demonstrated connection between drug abuse and offending. She cited one statistic; I shall cite another, from Home Office findings 148, which links the use of heroin and crack/cocaine with acquisitive crime. The use of heroin or crack/cocaine is associated with levels of offending which are nearly 10 times higher than those of non-drug-users. The reason is not hard to find: in many cases, it is acquisitive crime which funds the offenders' habit. While at liberty, in need of their drugs, such people will commit crime time and again in order to obtain those drugs. As the noble Lord, Lord Maginnis of Drumglass, said, the victims of those crimes may well include the vulnerable, the poor and, in particular, the elderly in our society, who may be most susceptible to attacks.

Notwithstanding that statistical strong link, if, in the case of a particular individual, there is no significant risk that he will re-offend, then the provisions do not apply. Otherwise, in the Government's view, it is legitimate to say that there should be a presumption against court bail for such a person.

In the Government's view, the provision has the additional benefit of helping to divert drug-misusing defendants into assessment and into whatever follow-up assistance or treatment is appropriate to help them to deal with their habit. I do not dissent from the view expressed by the noble Baroness and the noble Lord, Lord Hylton, that dealing with addiction is a difficult task. But, as I am sure they both agree, it is a very important task.

The Government are doing what they can to improve the availability of treatment. Perhaps I may identify what I am told were the average times reported in DAT treatment plans as of April 2003. They ranged, for example, from five weeks for in-patient detoxification to 4.1 weeks for residential rehabilitation. I can provide more details of that. I am afraid that I cannot answer specifically the question asked by the noble Baroness concerning whether the figures have improved since my noble and learned friend gave evidence to the Select Committee. However, I shall write to her with such information as I can.

But, of course, the provision in the clause recognises that it would not be right to impose obligations relating to assessment and treatment in places where assessment and treatment are not available. That is made clear in subsection (6C), which provides for the new provisions to be introduced on a pilot basis by providing for the presumption against bail to apply in areas where the court has been notified that arrangements for conducting assessments and for providing suitable follow-up, which may include medical intervention, have been made, and have not been withdrawn, in the area in which the person would reside if granted bail. Therefore, there are pilot opportunities for these new provisions to be operated.

I should add a word about new subsection (6D). It imposes an obligation on the court to attach a condition of bail, if granted, to the bail of a person who is aged 18 or over, who has tested positive for a specified class A drug and who is charged with either possession or possession with intent to supply in relation to a specified class A drug, or where the court is satisfied that use of a class A drug caused or contributed to the offence or that the offence was motivated by the intended use of such a drug. The condition to be attached to bail in these circumstances is that the person must undergo an assessment of his or her dependency on, or propensity to misuse, any specified class A drug, and must participate in any relevant follow-up proposed to him or her, consequent on that assessment.

Having regard to what the noble Baroness said about different forms of treatment, treatment will be assessed by those who understand the nature of the particular condition and what is appropriate for the particular offender. That is what is intended by the clause.

The need to balance the protection of society against the risk of re-offending with appropriate incentives for treatment for those who can benefit from it justifies the provisions in Clause 19.

4.30 p.m.

Baroness Walmsley

I am most grateful to the noble Lord, Lord Hylton, for his support, and I am very much in agreement with the noble Lord, Lord Maginnis of Drumglass, about the fact that everybody's human rights have to be respected. It is because of concern for the old person who may be mugged for her purse that I want drug treatment to be effective.

I am grateful to the Minister for his comments. However, an habitual shoplifter is also liable to commit an offence while on bail. There is no presumption in that case. Two wrongs do not make a right. Infringing the human rights of a defendant to try to put something right is not the solution. I do not think that I have had full answers to my questions on the Human Rights Act. Perhaps the Minister will be kind enough to write to me.

The clause is not the solution to the problem, which is to provide good quality treatment, and to leave the decisions on bail to the court. The Minister said that professional assessors will make an assessment and recommend the treatment to be given. But, in the current situation, if professional assessors are to say what sort of treatment is to be given, the clause will not be implemented almost anywhere in the country, as the services are simply not there.

If the assurance given by the noble and learned Lord is to be believed, perhaps I am wasting my time in suggesting that the clause should not stand part, as it cannot operate based on that assurance.

Clause 19 agreed to.

Clause 20 [Supplementary amendments to the Bail Act 1976]:

Lord Goldsmith moved Amendment No. 73: Page 15, line 39, at beginning insert "Schedule or paragraph 6A does not apply by virtue of paragraph 6C of this Part of this The noble and learned Lord said: This is simply a technical amendment to Clause 20. I beg to move.

Lord Mayhew of Twysden

In considering Amendment No. 73, the word "simply" is not the word that most immediately comes to mind. Perhaps in a triumph of hope over expectation, I touchingly hold on to the belief that one day Home Office legislation may clearly reveal what it means and what it seeks to achieve.

Legislation ought not to set exercises that would be appropriate for an examination for senior wranglers. It should provide a clear guide for what the public will experience and for those who advise them—never more so than when the liberty of the citizen is at stake.

In respect of Amendment No. 73, amending Clause 20(1), I am not so much disappointed as dismayed. It is worth reading the clause with the amendment inserted. Line 24 on page 15 states: In Part 1 of Schedule 1 to the 1976 Act … the existing text of paragraph 2 is to be sub-paragraph (1) of that paragraph, and after that sub-paragraph (as so re-numbered) there is inserted— '(2) Where the defendant falls within one or more of paragraphs 2A, 6 and 6B of this Part of this Schedule, this paragraph shall not apply unless"— I move to paragraph (c)— where the defendant falls within paragraph 6B, the court is satisfied as mentioned in paragraph 6A of this Part of this Schedule or paragraph 6A does not apply by virtue of paragraph 6C of this Part of this'". That seems to represent legislation by reference to earlier statutes at its most obnoxious. It is small wonder that the Explanatory Notes offer no guide. The author has obviously been defeated and preferred to ignore this clause, even before amendment was sought.

I mention this with a topical allusion. Probably, quite prominent among people who will be affected by legislation for which such amendment is sought will be those who are alleged to have fallen foul of one or more aspects of immigration law. It is at this stage that we note that the 30 year-old grant to the Immigration Advisory Service is being removed, so that it will no longer be able to provide thus funded legal advice and assistance on this sort of matter.

I urge the noble and learned Lord the Attorney-General, who was not responsible for this amendment, to take it away and look at it again before Report to see whether we cannot have recourse to something called the English language in seeking to put forward to the public, and those who advise them, what the legislation actually means and what it is meant to do.

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 hail. 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 I 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 1 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 21 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.

Lord Goldsmith

In responding to the amendment, I shall speak also to government Amendments Nos. 80, 81 and 95, which stand in the name of my noble friend Lady Scotland.

The noble Lord, Lord Dholakia, referred more generally to the purpose behind this part of the Act and I am happy that he has done so. The clause creates a statutory conditional caution for adult offenders aged 18 and over who are willing to admit their guilt. As the noble Lord said, there is already a statutory scheme under Sections 65 and 66 of the Crime and Disorder Act 1998 for giving young offenders a final warning accompanied by intervention to reduce the likelihood of re-offending.

The new scheme would allow adults to receive a formal caution but with specific conditions attached. It is intended to be used in cases when more than a simple non-statutory caution is justified but when the circumstances are not such that the public interest necessarily requires a prosecution, or requires one if the offender is willing to undertake some other action—either of a reparative nature or something that may help to rehabilitate. I hope that the Committee will endorse the principle behind the new scheme as a way of finding appropriate disposal for offenders without clogging up the prisons unnecessarily, as one or two noble Lords have said in the course of the Committee.

The noble Lord wanted to be satisfied about how the scheme will work in practice—that it would not operate in a discriminatory way against particular members or groups of the community. I hope that he will not be surprised to hear me say that I wholly endorse that wish. He may be aware that the Crown Prosecution Service has been doing a great deal of work to ensure that it operates its functions in a way that is non-discriminatory and that it understands the different attitudes and cultural traditions of different members of the community. This morning I attended a conference at which the CPS launched a new policy in relation to racially or religiously aggravated crime, which was well attended by members of the community. I will come back in writing to the noble Lord on how the scheme will work.

Amendment No. 74 would insert, in respect of an offence and in lieu of charging". We believe the amendment to be unnecessary. It could also be misleading. That cautioning should be in lieu of criminal proceedings rather misses the point. If the conditions, once accepted, are not met, proceedings may still need to take place. We hope that the clause as drafted is sufficiently clear, and I invite the noble Lord not to press his amendment.

The government amendments make conditional cautions available to "official" prosecutors in addition to the CPS. The change was prompted by the view expressed by the Whitehall Prosecutors Group. A range of prosecuting authorities is represented in the group, which prosecutes on behalf of the public but not as the CPS. It believes that there may be cases in which this form of disposal would be suitable. The Government want to increase the availability of this important and useful power. At the moment, some of the prosecutors use simple cautions and the amendments would enable them to accompany the caution with a condition—that reparation should be made, for example.

Lord Carlisle of Bucklow

I welcome the new clause and the comments of the noble and learned Lord the Attorney-General about the principle. As I understand it, the amendment is an attempt to widen the power to caution to cover those who might otherwise be tried and might end with other forms of penalty. The conditions are very similar to the present power of the police to caution a defendant. However, with this welcome new power we are nevertheless imposing conditions that will presumably have to be supervised by someone. What effect will the new power have on the workload of the Probation Service? Have the Government involved the Probation Service in discussions on the proposal? The duty of, ensuring or facilitating the rehabilitation of the offender will inevitably, at the end of the day, rest on the Probation Service, which is already very heavily pressed.

Are we possibly in danger, yet again, of unintentionally increasing the prison population? I welcome the principle that, when it is suitable, people should be dealt with not by the courts, but by a conditional caution. However, if there is a breach of that caution, the offender goes back before the court. The court may impose any power on the breach that could have been imposed in the first place. There may be a temptation to impose a short period of imprisonment. I hope that, in practice, the effect will not be the reverse of what the noble and learned Lord the Attorney-General wishes to be the purpose of the clause, which is one that I welcome.

Lord Hodgson of Astley Abbotts

The amendment tabled by the noble Lord, Lord Dholakia, is a helpful probing one and I am grateful to the noble and learned Lord the Attorney-General for his explanation. We accept the importance and value of the conditional caution proposal.

I have one small question about Amendment No. 95, which relates to the definition of the relevant prosecutor. The amendment refers to, "a Secretary of State", which is an issue that we will raise later in respect of the codes of practice for conditional cautions. Why does it refer to "a Secretary of State", using an indefinite article? Surely it should be "the Secretary of State", since it refers to only one? No doubt the noble and learned Lord the Attorney-General will tell me that, in the world of the parliamentary draftsman, just as "unless" equals "if' and "not" equals "only", "a" equals "the". The clause would look better if "the" was used, because we are talking about a specific rather than any Secretary of State.

Lord Elton

I rise to support my noble friend Lord Carlisle and to take what he said a fraction further. He said that there would be more people in prison as a result of breach and linked that to his anxiety about an already overloaded probation service. My anxiety is that the probation service will not be able to supervise as it should and that there will therefore be a continual undercurrent of undetected breaches that will bring the system into disrepute, making people no longer afraid of the conditional caution, thus offending more enthusiastically and frequently and adding to the flow of people into crime.

We experienced a little of that with the introduction of the community sentence, when intermediate treatment, as it was first called, was a rigorous, well-supported and well-financed treatment—largely, I may say, by voluntary organisations. When that was broadened into the community sentence, a diminution of the respect with which it was held and its effectiveness began. I am anxious that if we have an underfunded or overloaded probation service, the same problem may repeat itself.

5 p.m.

Lord Goldsmith

I am happy to respond to the questions that have been raised. To deal first with the point made by the noble Lord. Lord Hodgson, this is not a case in which parliamentary counsel thinks that the indefinite and definite articles are interchangeable. The provision does not refer to a single Secretary of State, as the noble Lord's question presupposed, because more than one Secretary of State has a prosecuting function. For example, prosecutions issue from the department of the Secretary of State for Trade and Industry, so it is appropriate that the provision should refer to "a" rather than "the" Secretary of State.

Lord Hodgson of Astley Abbotts

I am grateful to the Attorney-General for giving way, but surely the Secretary of State for Trade and Industry does not issue conditional cautions.

Lord Goldsmith

Well, she might, because DTI prosecutions are conducted by one of the prosecuting agencies to which I referred earlier, which are represented on the Whitehall Prosecutors Group. In relation to certain offences with which the DTI deals, it may be thought appropriate to issue a conditional caution, so the Secretary of State for that department should deal with it. I give that by way of example; other departments with a responsible Secretary of State prosecute on health and safety, environmental and, I think, transport matters—although I may be wrong about the latter.

I was also asked a question by, among others, the noble Lord, Lord Elton. I recognise from his background and experience in diverting young offenders the sincerity and importance of that question. It will not in fact be the probation service that will be responsible for supervising conditional cautions. It has no locus before someone is convicted. The arrangements for supervision must therefore take account of other agencies, including the Crown Prosecution Service. That is being worked on at the moment; if the Committee will permit, I shall take the opportunity to give more information about the consideration taking place, not now from the Dispatch Box but hereafter, in a letter.

Thirdly, the wish was expressed that the making of conditional cautions should not have the counter-productive effect of leading more people into prison. Again, I appreciate the consideration that gave rise to that question. That is obviously not what we want. It is right to say that if a court comes to sentence, it does not have to sentence by way of imprisonment. It is not sentencing for the failure; it is sentencing for the original offence. A fine or community service order may well be the appropriate response.

I agree with those Members of the Committee who said that the power must he exercised in a way that will achieve its objectives and am grateful for all those who expressed their support for the principle behind the provision.

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 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:

1. "(a) a constable
2. "(b) an investigating officer, or
3. "(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.

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 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,

1. "(a) that there is sufficient evidence to charge the offender with the offence, and
2. (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 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.

Lord Elton

The noble and learned Lord's further response is very helpful. I wish only to say that my recollection of the Prison Service when I was the Minister responsible for it was that the age of criminal burnout was somewhere between the ages of 28 and 32 years. In my view, anyone under those ages is still young.

Baroness Carnegy of Lour

I thought I heard the noble and learned Lord say that it would be a waste of time for an officer of the rank of chief inspector or above to go about administering conditional cautions. Is he sure that having a constable doing so will clearly indicate the gravity of the situation? There is a risk that a conditional caution may give the impression of being an easy way out. However, if the conditions are not fulfilled, the result could be much more serious. Thus it is important that the person being cautioned takes the matter seriously. Is the noble and learned Lord convinced that a constable will be the right person to do this?

Lord Goldsmith

It is right that the person who accepts a conditional caution understands the seriousness of the matter. That will be made clear on the form which the offender will have to sign. It will state the purpose and effect of the caution.

I am perfectly confident that police officers of the rank of constable will be able to bring home to offenders the importance of what they are agreeing to. As I have said, while the constable will not make the decision that a certain case is appropriate for a conditional caution—that will be made by others—I suggest that the officer will be well able to drive home the importance of it.

Lord Elton

Could the noble and learned Lord go a little further into the detail of the way this is to be administered? He said that a prosecutor might be in the police station at the time. Is there to be a duty prosecutor in every police station? If not, how is that to be achieved?

Lord Goldsmith

This touches on later provisions in the Bill, an important one of which gives the prosecutor the responsibility for determining whether to charge an offender and with what to charge him. Obviously this will follow close consultation with the police who have gathered the evidence.

In a number of cases in the pilots that we have carried out in relation to this, lawyers have been present at police stations in order that police officers can come to them and say, "This is the evidence. Is it enough?". I have been and seen it for myself. I suspect that we will discuss this issue further in relation to a later part of the Bill. It will not happen necessarily in every police station because there are many across the country and there may not be enough prosecutors to cover them all. But alternative arrangements will be in place to ensure that excessive delay is not added to the process.

Lord Hodgson of Astley Abbotts

I am grateful to the noble and learned Lord for that response. Returning briefly to Amendment No. 75, he said that it was not practical because the conditions could not necessarily fulfil the requirements of both rehabilitation and reparation. We never felt that that was the case. The subsection refers to "the conditions which may be attached", but not every condition has a joint and several responsibility to facilitate rehabilitation or make reparation.

We are concerned that if you leave out "either/or" you could have a whole series of conditions concerned with only one of the two objectives in subsections (3)(a) and (3)(b), on rehabilitation and reparation. We feel that some conditions must hit either subsection (3)(a), on rehabilitation, or subsection (3)(b), on reparation. As I read the Bill, it is possible for only one of those objectives to be met. If we were to try it the other way and state that "each condition must meet the two objectives" I would understand the point made by the noble and learned Lord. However, the Bill refers to "the conditions" and we want to make sure that some of the conditions of the conditional caution hit those two targets.

As to Amendments Nos. 78 and 79, the noble and learned Lord pointed out that "give" has a narrow and technical meaning, whereas, to an outsider, "give a conditional caution" does not at first sight appear like that. Will the Government consider redrafting the clause to replace the word "give" with the word "administer", which is the word used by the noble and learned Lord when explaining the way in which Clause 22(1) will operate? To the world outside, "give" is a far-ranging and wide-reaching word; "administer" has a more practical and technical sense.

Lord Goldsmith

With respect, I am not sure that I quite follow the noble Lord. My point is this: it is appropriate to have a power to grant a conditional caution even though the condition or conditions proposed effect only one of the objectives. There may be a condition simply to make reparation or there may be three conditions, to pay compensation to Mrs A, Mrs B and Mrs C, without any rehabilitation being involved. It is appropriate to do that. Equally, there may be some conditions that relate to reparation only—for example, take a driving test, have an eye test and so on.

As to whether the clause is clear enough, at the moment—I am sure it is my fault—cannot see the word "give".

Lord Hodgson of Astley Abbotts

Clause 22, line six. The line below the clause heading.

Lord Goldsmith

Thank you very much. I should have read the first line. I shall certainly take the issue away to see whether it is clear enough. However, I believe that it is and I hope that the explanations I have given will help to clarify it further.

Lord Hodgson of Astley Abbotts

I thank the noble and learned Lord. I shall consider further what he said about the twin conditions of cautions. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goldsmith moved Amendment No. 76:

Page 16, line 14, leave out "ensuring or"

On Question, amendment agreed to.

[Amendments Nos. 77 to 79 not moved.]

Lord Goldsmith moved Amendment No. 80:

Page 16, line 19, leave out "Director of Public Prosecutions" and insert "a relevant prosecutor"

On Question, amendment agreed to.

Clause 22, as amended, agreed to.

Clause 23 [The five requirements]:

Lord Goldsmith moved Amendment No. 81:

Page 16, line 24, leave out "the Director of Public Prosecutions" and insert "a relevant prosecutor"

On Question, amendment agreed to.

Lord Hodgson of Astley Abbotts

.moved Amendment No. 82: Page 16, line 29, after "offender" insert ", having taken or refused to take legal advice, The noble Lord said: In moving Amendment No. 82, I shall speak also to Amendments Nos. 84 and 86. The amendments concern conditional cautions. Clause 23 lists the five requirements necessary if a conditional caution is to be issued. The third requirement, in Clause 23(3), requires the offender to admit that he has committed the offence. If the offender does so he might bring certain consequences upon himself that, if he were not a lawyer, he would not anticipate.

Amendments Nos. 82 and 84, therefore, would act as a failsafe to protect the rights of an offender. They make it a requirement for him to have accepted or, having been offered, to have refused to accept legal advice. We have a concern that a person might be tempted to accept a conditional caution without realising that it might he in his interests to first take legal advice. One can envisage a situation where a defendant wishes to finish off the matter quickly or is encouraged to do so by the police on the grounds that it would get it out of the way quite quickly.

If legal advice is offered the suspect will have an opportunity—which, of course, he may decline—to understand the legal consequences of a conditional caution, including, in particular, the consequences of an admission. It would also provide a safeguard against false or misled admissions being made.

Both the Law Society and the London Criminal Courts Solicitors' Association agree on this point. The latter has distributed a helpful briefing which states that, an admission of guilt must be genuine, not just a solution to escape a charge or 'get it over and done with"— Given the risk of prosecution if the conditions are breached, potentially lengthy complications that might arise at prosecution could be avoided if legal advice had been offered. We see no sensible reason why this proposal should not be incorporated into the clause.

Amendment No. 86 relates to Clause 24 and the failure to comply with conditions. It is closely linked with Amendments Nos. 82 and 84. It would leave out Clause 22(2) and enable the document detailing the offence and the ancillary provisions laid out in Clause 23(5), which have been signed by the offender, to be admissible in criminal proceedings.

If an offender is not to be offered the opportunity of legal advice when signing the document admitting his guilt, is it right that the document should then be used as evidence? As has been mentioned, a person could be pressured into signing such a document unaware of the consequences. If, however, the offender were given the opportunity of legal advice, this would not be a concern. The amendment therefore is clearly tied in with the previous amendments concerning the offering of legal advice. If the Government accepted them, Amendment No. 86 probably would be superfluous. I beg to move.

Lord Goldsmith

As the noble Lord, Lord Hodgson of Astley Abbotts, said, Amendments Nos. 82 and 84 are concerned with whether a suspect should be offered legal advice before admitting to the commission of an offence. A suspect will have been offered legal advice. He will have been informed, I should say more strictly, of his or her right to independent legal advice in compliance with the provisions of PACE before reaching that stage. The suspect will have been accused of an offence and therefore the provisions in the code which require that person to be informed of his or her right to independent legal advice will apply. In those circumstances it seems unnecessary to add an additional requirement to the provisions. I do not disagree with the underlying point that the noble Lord makes; namely, it is important that before somebody admits an offence he should have had the opportunity of seeking legal advice and be reminded of that opportunity. The provisions of PACE should be adequate to deal with the situation.

In referring to Amendment No. 86, the noble Lord said that if the Government accepted the previous amendments the need for it would disappear because legal advice would have been provided. If the noble Lord is satisfied by what I have said about the effect of PACE, he may well want to consider it further before expressing any view about it, which I would entirely understand. He may not wish to move that amendment either.

It seems to us that there are certainly circumstances in which it would be appropriate for the form, which would have been signed in accordance with the requirements of Clause 23(5), to be admissible in evidence, if only for the purpose of proving that the suspect did in fact agree to the conditions. Then the question can be determined as to whether or not he has failed to comply with them. We press to retain that provision.

In Committee in another place the honourable Lady Hermon suggested that the pro forma signed by the offender should state clearly that it might be used in evidence against him if criminal proceedings were to follow. That is a useful suggestion, which is being considered.

5.30 p.m.

Lord Dholakia

Can the Minister say whether the legal advice is available before the caution is administered, or while the caution is being given? There are some serious repercussions in failing to comply hearing in mind that consent is required and the condition attached to that consent. That has some bearing on another amendment, which I wish to move at a later time.

Lord Goldsmith

I believe that the answer is that the suspect will have been reminded earlier of his right to independent legal advice. If the suspect has followed that up and has received it, the solicitor will be available to give the offender advice at all moments from the time he or she is instructed to assist. I anticipate that that would include advising on whether or not it is right to admit the offence and appropriate to accept the condition; and, indeed, explaining what the consequences would be if the condition were broken.

If the offender declines to take legal advice, which is his or her right, that legal advice will not be available at the time when the caution is administered. That simply follows from the choice which has been made. I believe that that is how it would work.

Lord Hodgson of Astley Abbotts

I do not find that answer entirely satisfactory. I understand what the noble and learned Lord said about the PACE conditions, which is a very fair point. But they are away from the Bill that we are discussing. We have here five requirements for conditional cautions. If the Government are confident that the PACE conditions cover the point, I do not see why they cannot accept that. The third requirement is that, having taken or refused to take legal advice, the offender admits to the authorised person that he committed the offence". It is clear beyond peradventure that it is one of the requirements for which he should have legal advice before admission. The fifth requirement is the signing of the document. After being offered the opportunity to receive legal advice, the offender signs a document which contains—", details of the offence, and so on.

All we are trying to make clear on the face of the Bill is that on these two important points—the admission and the document to be signed, which contains all the details of the offence and his consent to being given a conditional caution—there should be a clear requirement to having been offered, and either taken or refused, legal advice. The PACE conditions are all very well, but they are some way away; they are capable of being changed without this Act being altered—

Lord Goldsmith

I am grateful to the noble Lord for giving way. The noble Lord will recall that the Act itself deals with PACE and its codes of practice. I do not know why he says that the PACE codes are away from this Act. They are referred to specifically in Part I of the Act. I also remind the noble Lord that there are many conditions in PACE to which it would be appropriate to have regard when considering whether or not the suspect has been dealt with properly before reaching the caution conditions as regards interviews, and so forth.

I assume that the noble Lord is not saying that we should incorporate all of those conditions into the clause. If that were the case, it would be a very long clause indeed. Surely it is better to rely on the general provisions that Parliament has thought appropriate under the PACE codes and allow them to be of general application, rather than making specific provision for each and every one of them each time there is a disposal provision.

Baroness Carnegy of Lour

I still have not understood. Can the noble and learned Lord explain at what point the suspect will be told that he could have legal advice? Will he know what he is getting it for?

Lord Goldsmith

Under PACE, and depending on the circumstances, where a person is arrested for an offence and brought into a police station, it is a requirement that the right to independent legal advice is notified to the person involved. It is within our common experience that it is at just such a stage that a solicitor will attend the police station to advise on the process that is to take place, and/or participate in the interview. It is at an early stage of the process that the suspect is reminded of the right to legal advice and can take up that offer.

Lord Hodgson of Astley Abbotts

I am grateful for that further explanation. I shall read carefully in Hansard what the noble and learned Lord has said. I believe that the express right to legal advice before people admit crime that will result in a conditional caution being issued is important. I shall reserve the right to return to the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hodgson of Astley Abbotts moved Amendment No. 83: Page 16, line 33, leave out "may" and insert "will

The noble Lord said: This is a brief but important amendment that relates to the wording of Clause 23(4). It refers to the fourth of the five requirements that need to be satisfied in order for a conditional caution to be given. This clause has been carefully drafted. Its intentions are clearly well-founded. It requires that an authorised person explains to the defendant about the conditional caution and warns about the consequences of failure to comply.

However, the clause then throws away all this good work by saying that if any of the conditions are breached prosecution "may" follow. Today we have been discussing the finer details of these conditional cautions ensuring that they are meticulously worded, fully comprehensible and as fair as possible. Why, therefore, is it not a certainty that the offender is to be prosecuted if he fails to comply? What will be the impact of the removal of the certainty of unpleasant consequences in cases of breach upon the value and efficacy of the whole concept of conditional cautions? Our amendment seeks to replace "may" with "will"; in other words, to make a prosecution certain. I beg to move.

Lord Goldsmith

I suggest that it would not be credible to say that every breach of a conditional caution would automatically result in a prosecution.

That would be the effect at least of what would be stated to the offender, but not the fact in practice. If it were the policy that every breach, however trivial, automatically resulted in prosecution" it would be unduly restrictive. It would be impossible to take genuine reasons for non-compliance into consideration. It would be a much more onerous provision than we have in mind.

It is important that the offender should understand that the conditions are serious. If he does not comply with them, he should be warned that there could well be consequences. That is well enough said by warning him that the caution may result in his being prosecuted rather than in asserting—dare I say it, untruthfully?—that it will, notwithstanding what the circumstances may be. I invite the noble Lord not to pursue the amendment.

Lord Hodgson of Astley Abbotts

I am grateful to the Minister for that explanation. We are anxious that if the conditional caution is to have some teeth, it should be proceeded with where conditions are broken. We understand that pressing for it to be done on all occasions is probably not a practical proposition. I beg leave to withdraw.

Amendment, by leave, withdrawn.

[Amendment No. 84 not moved]

Clause 23, as amended, agreed to.

Clause 24 [Failure to comply with conditions]:

Lord Hodgson of Astley Abbotts moved Amendment No. 85: Page 17, line 4, at end insert "but not more than three months after the commission of the offence

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 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.

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 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.

Clause 25 [Code of practice]:

Lord Hodgson of Astley Abbotts

.moved Amendment No. 89: Page 17, line 12, leave out "may" and insert "shall The noble Lord said: In moving Amendment No. 89, I shall also speak to Amendments Nos. 90, 92, 93 and 94, which are all about the code of practice. They concentrate on this already much debated issue but this time in relation to conditional cautions.

Clause 25(1) requires the Secretary of State to prepare a code of practice for conditional cautions. Subsection (2) details the provisions which are to be included; these are laid out in paragraphs (a) to (h). Having thus gone to some trouble to make clear the contents of the codes, it is perhaps surprising that the preamble includes not a prescriptive verb but a conditional one. In other words, subsection (2) provides: The code may, in particular, include provision as to— followed by paragraphs (a) to (h). Amendment No. 89 seeks to remove this uncertainty about the contents of the code by replacing "may" with "shall". What is the purpose of all this elaborate drafting if the Secretary of State can then ignore it all? Once again, it raises concerns about what may or may not happen at some unknown date in the future.

Amendment No. 90 concerns the specific provisions of Clause 25(2)(d); it follows the discussions we had on Amendments Nos. 78 and 79 as to the suitability of a constable or investigating officer issuing conditional cautions. As we said then, we agree with the Law Society's view that police representatives of lower ranks are not trained or qualified to make judgments. But if, as the noble and learned Lord said, this is primarily about operating procedures and administration, that too is odd, because it seems in that case to duplicate to a large extent paragraph (0, which deals with, the form which such cautions are to take and the manner in which they are to be given and recorded". In the light of the noble and learned Lord's response to our earlier amendment, I am not quite clear about the difference between paragraphs (d) and (f).

The particular focus of Clause 25(2)(d) seems even more illogical when we consider Amendment No. 92. This requires the code—and here we return to the point raised by my noble friend Lord Elton—to include the role of the probation service in bodies which need to be involved in the code of practice. The probation service has hitherto been ignored, except in my noble friend's comments, yet it will bear the brunt of the work of enforcing the conditions attached to these cautions. Indeed, while we welcome the concept of conditional cautions, we are concerned whether the Government have fully thought through the funding implications. Nothing will undermine a good idea faster than a failure to administer it properly.

Our concern in Amendment No. 92 is more of a practical and administrative one. We are concerned about the weight that will fall on the shoulders of the probation service when it comes to monitoring the compliance of the conditions attached to the cautions.

So it is surely imperative that the probation service has a chance to express its views about the practicalities of the various conditions regarding what is practicable, what is not, what would work and what would not and, for future planning, what has worked and what has not. This amendment aims to probe the Government as to why, since the probation service is to play such an integral part in this area, it is not even mentioned in the extensive list given in Clause 25(2).

Amendment No. 93 draws attention to the importance of proportionality in imposing conditions on cautions by adding an additional provision, paragraph (i), to the matters about which the code of practice must make provision—for example, returning to an earlier debate, in connection with cautions issued to those with mental problems. Ministers in the other place have stressed the importance of having flexibility when it comes to the letter of the law. Given rapidly changing social attitudes and conditions, we accept that this is a valid consideration, but there needs to be some limitation. This amendment is aimed at avoiding the possibility of the use of unfair or unreasonable conditions being enforced upon someone who does not realise that they might well be unable to meet them.

Amendment No. 94 would require the affirmative resolution procedure to be used for all revisions to the codes of practice that govern conditional cautions. This repeats the discussion we had over Amendments No. 38 and 39, which were tabled to ensure that proper parliamentary scrutiny took place when the Secretary of State chose to revise the PACE codes. However, while by Amendment No. 37 the Government accepted a measure of parliamentary scrutiny over the PACE codes, the codes of practice that will govern conditional cautions have not been given the same attention. We think this is wrong. Conditional cautions are an important development in the Government's criminal justice policy. If the concept works well, it could play an important role in keeping down the prison population, but the way in which it operates should be given proper parliamentary scrutiny. I beg to move.

6 p.m.

Lord Renton

We must be precise. We must not leave too much to the discretion of the officer who issues the caution. It is right, therefore, that the codes of practice should be clear in ensuring that the cautions are precisely worded. Therefore, I support the various amendments moved by my noble friend.

There is one amendment which I am glad he moved. Clause 25(2)(d) refers to, the category of constable or investigating officer by whom such cautions may be given". It may be that owing to the passage of time my knowledge of types of constable has become somewhat uncertain. I thought that there were only constables and constables and not various categories of constable. We need an explanation as to what the, category of constable or investigating officer will be. In any event, I should have thought that any constable should have power to issue a conditional caution. Perhaps paragraph (d) should be left out.

Amendment No. 94 is important. We are breaking new ground here. It is only right that a draft should be laid before each House of Parliament for approval. Therefore, Amendment No. 94 is of value.

Lord Carlisle of Bucklow

In a debate on a previous clause, I thought that the noble and learned Lord the Attorney-General said that the probation service was not to have anything to do with the conditions as regards these cautions. If so, who is? I do not understand who will monitor and control the conditions relating to facilitating the rehabilitation of the offender if it does not in some way come under the aegis of the probation service. I shall be grateful to hear the government's proposals on who will do so. I understood him to say that it would not be the probation service.

Lord Goldsmith

I shall speak to Amendments Nos. 89, 90, 92, 93 and 94. Amendment No. 89 would insert "shall" for "may" thereby insisting that the code must cover all of the matters dealt with. Imposing that requirement by primary legislation seems to us to be unnecessary. The code will have to be laid before Parliament—I shall come back to that—and has to be published in draft. The Secretary of State has to consider representations about it. He has to obtain the consent of the Attorney-General and then lay it before each House of Parliament. It may be that at some stage—plainly it is not our view at present—it may appear unnecessary for the code to contain one of the provisions, for whatever reason that may be. If Parliament is not happy that that matter is not dealt with, it will be able to make that plain when the code is brought before it. It seems unduly restrictive to insist that each of these matters is dealt with in the code—even though they would not be included as items which the Secretary of State can include in the code—if it did not seem at present that a code should cover those issues.

If the noble Lord, Lord Renton, were right, Clause 25(2)(d), for example, would not be necessary because there would be no constable other than a single rank of constable. I am told that the word "constable" is used in the widest form and even a chief constable could be a constable. But, of course, there would be other investigating officers. By way of example, if the noble Lord had pressed successfully the amendment to a previous clause to delete the reference to "constable", this provision would disappear.

That is why I resist making it a requirement that each and every single one of these matters should be listed in the clause. Parliament will see the code when it comes forward and will be required to express its approval.

Amendment No. 90 seeks to remove paragraph (d) on the basis that it would have been consequential on Amendments Nos. 78 and 79 which have not been pressed.

Lord Hodgson of Astley Abbotts

It also duplicates what is in paragraph (f).

Lord Goldsmith

I beg to differ. Paragraph (d) deals with the identity of the person who may give the caution. Paragraph (f) deals with the form that such cautions are to take and the manner in which they are to be given and recorded. The manner in which they are given and recorded is not the same as the person who may give them. Both provisions are necessary and desirable.

Amendment No. 92 would add a reference to the probation service. In answer to points raised on an earlier clause, I indicated that I wanted to give further information about the way in which the Government see the conditional cautions being supervised and monitored. I indicated then that part of the responsibility would be that of the prosecution service because that is the one imposing the conditions.

I accept that it is an important question. Therefore, if noble Lords will allow it, I shall return to that issue. For the time being, I resist the insertion of a reference to the probation service. On the face of it, the service deals with medium and high-risk offenders. I am advised that a legislative change would be necessary, as I indicated previously, if its statutory duties were to be extended to offenders who were to be cautioned as opposed to offenders who have been convicted.

There is no need for the clause to specify as an issue to be covered the involvement of the probation service.

Lord Carlisle of Bucklow

Perhaps I may—

Lord Goldsmith

I think that the noble Lord, Lord Elton, had wished to intervene.

Lord Elton

I was sure my noble friend would get there first. I am grateful, therefore, to be given the handicap of starting.

When the noble and learned Lord writes about the involvement of an agency other than the probation service—if that is how he will proceed—I hope that he will go beyond the question of the statutory trigger which has not been used when a caution is substituted for a prosecution. I understand that under present legislation the probation service would not be involved because it requires a prosecution to trigger the involvement of the probation service. If that is not the case, a fortiori I ask him to address the question as to why the probation service is not being included in this work which is so germane to its training and experience. When he referred to the prosecution service a moment ago, he introduced a new word. He said that it will be partly responsible, as opposed to responsible, for the supervision of the conditions.

It is a highly technical matter. I hope that there has been consultation with the probation service and others concerned, or that there will be before a decision is made. I find myself in some anxiety about handing this function to something so different from the probation service as a prosecution service.

Lord Goldsmith

I agree, that it is not only a technical matter, it is also important. That is why I wanted to be able to give noble Lords a full and considered answer rather than simply indicating where we are at the moment. I have already used the phrase "partly responsible", which the noble Lord, Lord Elton, has, with eagle eyes, picked up on. 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.

Lord Carlisle of Bucklow

Is the Minister sure that he was right when he used the word "convicted"? He said that the probation service had dealings only with people who had been convicted. Does it not also have powers over people who have been bailed and are in bail hostels?

Lord Goldsmith

That is another reason why I should give a full answer after today's Committee stage. I am grateful to the noble Lord, Lord Carlisle, for that comment. I shall certainly look into the matter.

Lord Renton

I did not hear the Minister deal with Amendment No. 94, requiring a draft to be laid before Parliament.

Lord Goldsmith

I apologise for failing to deal with that. In fact I failed to deal with both Amendments Nos. 93 and 94. An intervention was made and I had forgotten that I had not completed my speech.

Amendment No. 93 would add to the list a new item: deciding, having regard to the character and background of the person to be cautioned, the appropriateness of conditions which may be attached". That appears to add little to the existing subparagraphs relating to the circumstances in which conditional cautions might be given and the conditions which might be imposed.

Regarding Amendment No. 94, the provisions of the Bill as it stands require the code to be laid before each House. By virtue of Clause 299, the statutory instrument containing the order must be laid in draft beforehand and approved by a resolution of each House. It is not apparent to me what is missing from those provisions. In other words, the code has to be produced in the form of a draft order, which must be laid before both Houses, and approved by affirmative resolution. Why is it necessary to add anything further? Surely the effect is that for which the noble Lord contends. I hope that I have now dealt with all of the amendments.

Lord Hodgson

Clearly, I had not read Clause 299 carefully enough. Regarding Amendment No. 89, I appreciate the points that the Minister has made. As ever, he is persuasive in the way that he argues his case. However, the reality is that the Government have chosen to draft the Bill with eight conditions which they think are important as part of the code of practice. Having gone to that considerable trouble, they then put "may" rather than "shall". He said that this imposed a requirement—you bet it does. He said that it was unduly restrictive—it may not be "unduly" restrictive, but it is restrictive and is meant to be restrictive. The operation of conditional cautions and this code of practice are important. To have a code which might vary completely from subsections (2)(a) to 2(h) is a mistake. There should be a restriction on the Secretary of State to produce codes which deal with paragraphs (a) to (h)—the heart of the whole question of conditional cautions. Without the issues covered by paragraphs (a) to (h) one wonders how on earth there can be a proper code. Therefore, I beg leave to test the opinion of the House.

6.15 p.m.

On Question, Whether the said amendment (No. 89) shall be agreed to?

Their Lordships divided: Contents, 74; Not-Contents, 145.

Division No. 1
CONTENTS
Allenby of Megiddo, V.	Hodgson of Astley Abbotts, L
Ampthill, L.	Howell of Guildford,L.
Anelay of St Johns, B.	Laird, L.
Astor of Hever, L.	Lane of Horsell,L.
Biffen, L.	Lindsay, E.
Blatch, B.	Lucas, L.
Bowness, L.	Luke, L.
Bridgeman, V.	McColl of Dulwich, L.
Brougham and Vaux, L.	Maginnis of Drumglass, L.
Burnham, L.	Marlesford, L.
Byford, B.	Mayhew of Twysden, L.
Campbell of Alloway, L.	Moynihan, L.
Carlisle of Bucklow, L.	Naseby, L.
Carnegy of Lour, B.	Noakes,B.[Teller]
Coe,L.	Northbrook, L.
Colwyn, L.	Northesk, E.
Cope of Berkeley, L.	Norton of Louth.L.
Craigavon, V.	O'Cathain, B.
Crathorne, L.	Onslow, E.
Crickhowell, L.	Palmer, L.
Denham,L.	Parkinson, L.
Dixon-Smith, L.	Pearson of Rannoch, L.
Elton, L.	Plumb, L.
Fookes, B.	Rawlings, B.
Fowler, L.	Renfrew of Kaimsthorn, L.
Freeman, L.	Renton, L.
Geddes, L.	Rogan, L.
Gilmour of Craigmillar, L.	Ryder of Wensum, L.
Glentoran, L.	Saltoun of Abernethy, Ly.
Goschen, V.	Seccombe, B.
Gray of Contin, L.	Selsdon, L.
Hanham, B.	Sharples, B.
Hanningfield, L.	Stewartby, L.
Henley, L.	Stoddart of Swindon, L.
Higgins, L.	Strathclyde, L.

Taylor of Warwick, L.	Wakeham, L.
Trefgarne, L.	Wilcox,B.[Teller]

NOT-CONTENTS
Addington, L.	Jay of Paddington, B.
Ahmed, L.	Jordan, L.
Alli,L.	Judd, L.
Andrews, B.	Kennedy of The Shaws, B.
Archer of Sandwell, L.	King of West Bromwich, L.
Ashton of Upholland, B.	Kirkhill, L.
Bach, L.	Layard, L.
Barnett, L.	Lea of Crondall,L.
Bassam of Brighton, L.	Lester of Herne Hill, L.
Beaumont of Whitley, L.	Lipsey, L.
Berkeley, L.	Livsey of Talgarth, L.
Bernstein of Craigweil, L.	Lofthouse of Pontefract, L.
Billingham, B.	McCarthy, L.
Blackstone, B.	Macdonald of Tradeston, L.
Borrie, L.	McIntosh of Haringey, L.
Bradshaw, L.	MacKenzie of Culkein, L.
Brett, L.	Mackenzie of Framwellgate, L
Brookman, L.	Mackie of Benshie, L.
Campbell-Savours, L.	Maclennan of Rogart, L.
Carter, L.	McNally, L.
Christopher, L.	Maddock, B.
Clark of Windermere, L.	Mallalieu, B.
Clarke of Hampstead, L.	Mar and Kellie, E.
Clinton-Davis, L.	Mason of Barnsley, L.
Cohen of Pimlico, B.	Massey of Darwen, B.
Colville of Culross,V.	Merlyn-Rees, L.
Corbett of Castle Vale, L.	Miller of Chilthorne Domer, B
Craig of Radley.L.	Mitchell, L.
Crawley, B.	Morgan, L.
Dahrendorf, L.	Morris of Aberavon, L.
Darcy de Knayth, B.	Murray of Epping Forest, L.
David, B.	Nicol, B.
Davies of Coity, L.	Parekh,L.
Davies of Oldham, L. [Teller]	Patel of Blackburn, L.
Dean of Thornton-le-Fylde, B.	Pendry, L.
Desai, L.	Perry of Walton, L.
Dholakia, L.	Pitkeathley,B.
Dixon, L.	Prashar, B.
Donoughue, L.	Radice, L.
Dubs, L.	Ramsay of Cartvale, B.
Evans of Temple Guiting, L.	Redesdale, L.
Farrington of Ribbleton, B.	Rendell of Babergh, B.
Faulkner of Worcester, L.	Richard, L.
Filkin, L.	Rodgers of Quarry Bank, L.
Fyfe of Fairfield.L.	Rooker, L.
Gale,B.	Roper. L.
Gilbert, L.	Russell, E.
Golding, B.	Russell-Johnston, L.
Goldsmith, L.	Sawyer, L.
Goodhart, L.	Scotland of Asthal, B.
Gordon of Strathblane, L.	Sharp of Guildford.B.
Gould of Potternewton, B.	Sheldon, L.
Graham of Edmonton, L.	Shutt of Greetland, L.
Greengross, B.	Simon, V.
Grenfell.L.	Stone of Blackheath, L.
Grocott, L. [Teller]	Taylor of Blackburn, L.
Hamwee. B.	Temple-Morris, L.
Hardy of Wath.L.	Thomas of Macclesfield, L.
Harris of Haringey, L.	Thomas of Walliswood, B.
Haskel, L.	Tordoff, L.
Hayman, B.	Turner of Camden, B.
Hollis of Heigham, B.	Walmsley, B.
Howe of Idlicote,B.	Walpole, L.
Howells of St. Davids, B.	Watson of Invergowrie, L.
Howie of Troon, L.	Watson of Richmond, L.
Hoyle, L.	Weatherill,L.
Hughes of Woodside, L.	Wedderburn of Charlton, L.
Hunt of Chesterton, L.	Whitaker, B.
Hunt of Kings Heath, L.	Whitty, L.
Hylton, L.	Williams of Crosby, B.
Irvine of Lairg,L.	Williams of Elvel,L.

Williams of Mostyn, L. (Lord President of the Council)	Williamson of Horton, L
	Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.

6.25 p.m.

[Amendment No. 90 not moved.]

Lord Goldsmith moved Amendment No. 91:

Page 17,1ine 20, leave out "the Director of Public Prosecutions" and insert "a relevant prosecutor"

The noble and learned Lord said: I move the amendment formally, as I have already spoken to it.

Noble Lords

No.

Lord Goldsmith

I apologise. I thought that I had spoken to the amendment under a previous group. The effect of the amendment is to make conditional cautions available to official prosecutors in addition to the CPS. The change was prompted by the view expressed by the Whitehall Prosecutors Group—I am sure that I have said this before—on which a range of prosecuting authorities are represented. There might be cases of theirs in which the form of disposal would be suitable. Some of them use simple cautions at present, and the amendment will enable them to accompany a caution with a condition that reparation should be made. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 92 to 94 not moved.]

Clause 25, as amended, agreed to.

Clause 26 [Interpretation of Part 3]:

Lord Goldsmith moved Amendment No. 95:

Page 18, line 4, at end insert— "relevant prosecutor" means—

1. (a) the Director of the Serious Fraud Office,
2. (b) the Director of Public Prosecutions,
3. (c) a Secretary of State,
4. (d) the Commissioners of Inland Revenue,
5. (e) the Commissioners of Customs and Excise, or
6. (f) a person who is specified in an order made by the Secretary of State as being a relevant prosecutor for the purposes of this Part."

On Question, amendment agreed to.

Clause 26, as amended, agreed to.

Clause 27 agreed to.

Schedule 2 [Charging or release of persons in police detention]:

Lord Dholakia moved Amendment No. 96:

Page 179, line 23, after "bail" insert "for a period of not longer than 28 days"

The noble Lord said: The purpose of our amendment is to look at the PACE Act 1984 on matters of charging or release of persons in police detention. We would be happy to see a time limit included in the primary legislation. The amendment would limit the pre-charge period from dragging on unnecessarily and thereby occasioning an appeal to the court, and ensure a right of appeal well established and recognised.

The CPS will of course progress the case as fast as possible. However, we have concerns about the unlimited bail periods. Set deadlines go some way to ensure that matters are reviewed and less likely to drag on unnecessarily. The alternative may be a high number of appeals against pre-charge bail with attendant cost implications. I beg to move.

Lord Hodgson of Astley Abbotts

I shall speak to two amendments in the group, Amendments Nos. 99 and 100. They also concern adjustments in the Bill made to Section 37 of the Police and Criminal Evidence Act 1984.

The amendments moved by the noble Lord, Lord Dholakia, concern the duties of custody officers before charge. Our amendment is concerned with Section 47 of PACE—Bail After Arrest. Amendment No. 99 would ensure that if a custody officer imposes bail conditions on a person, the person must be charged before 30 days have passed or the bail conditions lapse. If the person is charged, the case will be passed to the court, which could impose fresh terms. The amendment would limit the power that a custody officer may have over people's freedom. It is undesirable for a person or a body other than a court to be able curtail a person's freedom over a lengthy period of time.

The other amendment in this group, Amendment No. 100, seeks the addition of a constable to the list of persons who are granted the right to apply to a magistrates' court to vary the conditions of bail. It is a straightforward amendment. Just as the terms of bail may seem unfair or impracticable to a defendant or suspect, they might prove unsatisfactory also from the point of view of the police. The right to apply for the conditions of bail to be varied is a necessity for the defendant, because a change in circumstances could make the conditions unfair or inapplicable. We seek to probe the Government as to why the police should not have those same rights.

6.30 p.m.

Lord Hylton

Amendment No. 96, moved by the noble Lord, Lord Dholakia, is important, because it seems to be designed to prevent a person falling into a kind of limbo state, where they are not charged, but they are also on bail. I do not know whether 28 days is the right number, but the principle is important.

Lord Goldsmith

Two of the amendments are mine and I should identify them. They are Amendments Nos. 97 and 98. In moving them, I shall speak also to Amendment No. 96, moved by the noble Lord, Lord Dholakia, and to Amendments Nos. 99 and 100, which stand in the names of the noble Baroness, Lady Anelay, and the noble Viscount, Lord Bridgeman.

Amendments Nos. 96 and 99 would place a limit on the duration of any conditions on bail and the time for which a suspect could be bailed. The Home Affairs Select Committee recommended that there should be a limit on the duration of pre-charge police bail in cases referred to the Crown Prosecution Service for a decision on whether to charge. In their response, the Government undertook to consider the Select Committee's recommendation, indicating that at that stage the charging pilots. which were looking at that new form of co-operation between the police and the CPS, were suggesting that in most cases a five-week period should be sufficient to enable charges to be brought.

However, we have now been able to take account of the final evaluation report, which was an independent report, of the charging pilots. That recommended that no statutory limit should be applied. The Government have considered that carefully and have concluded that it would not be appropriate to place a statutory restriction on the duration of police bail, or on conditions attached to it. No such condition is attached to police bail in statute at present. I am not persuaded that there are compelling reasons to include one in the Bill.

That does not mean that the period for which suspects would be bailed, whether on conditions or not, should be unreasonably long, but the appropriate place to make that clear is in the guidance and instructions which will be issued by the Director of Public Prosecutions and by ACPO, the Association of Chief Police Officers, rather than in the Bill.

I emphasise that it would be open to a suspect to apply to a magistrates' court for conditional bail to be varied or to be discharged. Legal aid will be made available for that purpose. If, at any stage, it appears that the length of time is becoming excessive, it is open to a person to go a magistrates' court and ask either for the conditions to be varied or to be discharged. During that period, the person will be on bail rather than in custody.

Amendment No. 100 would enable a constable, as well as the suspect, to apply to magistrates' courts to have pre-charge bail conditions varied. That seems to be superfluous as the custody officer may vary the conditions himself.

I hesitate to say that government Amendments Nos. 97 and 98 are merely drafting amendments. On this occasion, I hope that I will not be contradicted, but I wait to see.

Lord Elton

In my experience, it is always safest to say that something is technical or complicated late at night. The noble and learned Lord might like to remember that.

The amendment of my noble friend, Amendment No. 100, and the remarks of the noble and learned Lord, raise a question that I have had at the back of my mind for some time. If the conditions are in place for a long time, their variation can be an important part of the management and possible rehabilitation—if that is the right word—of the admitted offender.

I understand from what the Minister said that the custody officer will be able to apply for a variation, as will the person subject to the order, but surely the person best placed to judge how a variation could improve the prospects of non-reoffending would be the person in charge of monitoring—to use the term in the Bill—the operation of the conditions. Is it intended to use the variation of conditions in that way? If so, would it not be best to give a power to go to the court to the person carrying out the monitoring?

Lord Goldsmith

It may be my fault for not having made it clearer that we have moved on from conditional cautioning to a different set of provisions in the Bill, which address charging in instances where the prosecution will make the decision to charge. This amendment is concerned with the question of bail and conditions for bail for potential offenders or suspects while the decision whether to charge is being made.

Lord Elton

I apologise to the noble and learned Lord and to the Committee. I was out of the Chamber for a couple of minutes for a telephone call that lasted longer than I expected. I had not noticed the change.

Lord Dholakia

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goldsmith moved Amendments Nos. 97 and 98:

Page 182, line 16, leave out "37D(6) above" and insert "37D(5)" Page 182, line 30, after "37(7)(a)" insert "above

On Question, amendments agreed to.

[Amendments Nos. 99 and 100 not moved.]

On Question, Whether Schedule 2, as amended, shall be agreed to?

Lord Mayhew of Twysden

Would it be possible, if not today then a little later, to take account of the point raised by the General Council of the Bar in relation to Schedule 2 and to this particular provision which gives to the police a new power to attach bail conditions before charge? The council's point was that the mere fact that a suspect has been brought to the police station does not mean that he or she has committed any offence. The council then points out that the custody officer is required to determine whether he has before him sufficient evidence to charge that person. Routinely, so it is said, the suspect is charged where there is a minimum of evidence. It is thereafter pointed out that where the custody officer takes the view that there is not enough evidence to justify a charge, it can generally be inferred that there is at the time little or no substance in police suspicions.

The police have adequate power to release a suspect on bail to return to the police station on a specified date. Accordingly, it seems to me, although I have not reached a conclusion about it, that it would be an unfair extension of police power to be able to impose a condition on bail in those extreme circumstances. I am afraid that I have not put down an amendment to enable the matter to be debated, but the Minister may be able to say something about it now or, alternatively, later.

Lord Goldsmith

I can certainly say this and I hope that it will help. The provisions in Schedule 2 deal in part with the new procedure under which the police will not charge an offender, even though they may believe that there is sufficient evidence to do so, but may instead release that person without charge on bail for the purpose of enabling the Director of Public Prosecutions to make a decision. One sees that on page 179, Schedule 2, paragraph 2, amending Section 37 of PACE. It is fundamental to the change, which has not attracted much by way of amendments because it has been supported by all political parties and the police and professional bodies too. In many cases—I will not go into which cases—it also gives the prosecution the new responsibilities for determining whether a charge should be brought.

In those circumstances, instead of the custody officer then and there saying, "You're charged with this offence", he will say, "There appears to me to be evidence, but in accordance with the new provision it ought now to go to the Crown Prosecution Service". What should happen during that period? The person should be on bail rather than in custody—he would have to be charged to be in custody—but it is appropriate for conditions to be imposed. It is necessary to make the new provision for having pre-charged bail in order to be able to cater for that example.

Schedule 2, as amended, agreed to.

Clause 28 [New method of instituting proceedings]:

[Amendments Nos. 101 to 104 not moved.]

Clause 28 agreed to.

Clauses 29 and 30 agreed to.

Clause 31 [Initial duty of disclosure by prosecutor]:

Baroness Anelay of St Johns

moved Amendment No. 105: Page 20, line 17, at end insert— (c) at the end there is inserted "where a prosecutor is not sure if an item falls within the regime of documents to be disclosed, they should be disclosed". The noble Baroness said: We now begin our debates on the important issue of disclosure. As we have made clear already, there is much that we can support in Part 5, but there is also much that we need to probe and clarify. We will oppose some issues, such as the proposal for the defence to disclose the details of experts whom they have consulted but do not intend to call as witnesses.

Clause 31 is just about the only non-controversial part of Part 5. It amends Section 3 of the Criminal Procedure and Investigations Act 1996 and introduces a single objective test for the disclosure of unused prosecution material to the defence. We welcome this reduction of the existing two-stage process of prosecution disclosure to just one stage and we welcome the change of the test from subjective to objective. It means that the test of, as currently worded, in the prosecutor's opinion might undermine". becomes, might reasonably be considered capable of undermining". We have tabled this probing amendment in response to a briefing from the London Criminal Courts Solicitors' Association. It simply asks the Government to put on the record that it is only in clear-cut cases that information should not be disclosed by the prosecution. Failure by the prosecution in the past to disclose information has sometimes been a major factor in overturning convictions—and, as Auld points out in his report, this is often after the person has spent many years in prison.

It is therefore essential that the right decision is made by the prosecution and if there is any doubt the prosecution should disclose. I beg to move.

6.45 p.m.

Lord Goldsmith

I understand the motivation behind the amendment. It is designed to ensure that the legislation is weighted in favour of prosecution disclosure rather than non-disclosure. I agree that it should be, but the amendment is not necessary for three reasons. First, the wording of the Bill already achieves this effect, although it is implicit in the legislation rather than explicit. The Criminal Procedure and Investigations Act 1996, as amended by this Bill, requires material to be disclosed if it might—I underline the word "might"—reasonably be considered capable of undermining the prosecution case or of assisting the defence case.

We see those words in Clause 31, paragraph (a). The word "might" in this context already tips the balance in favour of disclosure where there is any doubt in a particular instance.

The second reason is that there is an explicit steer on the subject in detailed guidance that is issued to prosecutors. The present guidance is in the Attorney-General's guidelines of November 2000, which cover this point explicitly. Paragraph 20 provides: In deciding what material should be disclosed at any stage of the proceedings, prosecutors should resolve any doubt they may have in favour of disclosure unless the material is on the sensitive schedule and will be placed before the court for the issue of disclosure to be determined". I need not now deal with the issue of sensitive material, which obviously falls into a different category.

Thirdly, one of the changes made by the Bill is to remove the subjective test from the disclosure procedure. Again, that appears from Clause 31 because the old formulation, in the prosecutor's opinion might undermine is substituted by the objective test, might reasonably be considered capable of undermining". The amendment proposed by the noble Baroness, Lady Anelay, would restore a subjective element. We have been trying to get rid of the subjective element and to stick to an objective test that does not depend on which person is applying it.

While not disagreeing with the thrust of what lies behind the amendment, for the reasons I have given we do not consider it necessary. Accordingly, I invite the noble Baroness to withdraw the amendment.

Baroness Anelay of St Johns

I am grateful to the noble and learned Lord for his response. As he said, the assurance is not explicit within the Bill, only implicit. His response today has made the Government's assurances explicit and on that basis I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 31 agreed to.

Clause 32 [Defence disclosure]:

Baroness Anelay of St Johns

moved Amendment No. 106: Page 20, line 31, at end insert "but the exchange of such a defence statement between the co-accused and its service by each accused on the prosecution shall be simultaneous The noble Baroness said: In moving Amendment No. 106, I shall speak also to Amendments Nos. 110 and 111. Amendment No. 109 appears on the groupings list in error. It was withdrawn last week and is so marked on the Marshalled List.

There is also an error in the placement of Amendment No. 111. In the Marshalled List, it is placed at page 21, line 38. That is a printing error because it should be at page 21, line 42.

We now move to the issue of defence disclosure. Disagreements over this clause are rooted in concerns about how the Government appear to be tampering with the principle of what the defence should be allowed to do to resist the prosecution. It reflects debates on the relative and different duties of the prosecution and defence.

In the debates on this matter in another place, (col. 223 on 9th January) my right honourable friend Dominic Grieve made it clear that we accept the principle of disclosure of the principal defence facts. After all, it was introduced in legislation under the previous Conservative government. Even in an adversarial system such as ours, a criminal trial should not be a series of ambushes. It is therefore plainly desirable that, as far as is possible and reasonable, the principal facts and matters of a defendant's case should be made available to the prosecution before the trial.

As has been pointed out by many organisations which have briefed noble Lords, such as the Bar Council, Justice and the Law Society, the defence will usually have far fewer resources at its disposal than the prosecution to provide extensive information and to provide it speedily.

Amendment No. 106 would provide for the simultaneous exchange by defendants of their respective statements with each other and their service on the prosecution. We appreciate of course that there may be times when this will not be possible; for example, when the defendant is arrested late. However this does not deny the fact that it would be far better to exchange all statements simultaneously. If this is not achieved, then the last defendant to join proceedings would have a distinct advantage over the others, which may not lead to a fair trial.

Amendment No. 111 develops this theme by taking the same line with regard to the simultaneous nature of exchange in circumstances where there has been an updated defence statement. Again we accept that this could create problems. Additional statements may be served for different reasons by different defendants at different times. Amendment No. 106 serves to remind us of the core principle of the fairness of the mutual exchange of statements. It is with the intent of putting on record the importance of that principle that we have put down these two probing amendments.

On Amendment No. 110, I note that the Bar Council and the Law Society have the view that with regard to Clause 32(2): Contents of defence statement gives the Secretary of State power to prescribe in regulations further details to be required in defence statements. This is too constitutionally sensitive and important to the balance of a fair trial and should require primary legislation. That is their view. I have tabled the amendment, in part, so that the Government can put on the record why they believe it is appropriate for secondary legislation. I have also tabled it for my own purposes. I wish to clarify a situation that arose as a result of how this was dealt with in another place. I have given advance notice of this particular point to the noble and learned Lord's Bill team.

This matter was debated in another place on 9th January (Hansard, col. 240). It was an amendment put forward by my honourable friend, Dominic Grieve. The quick response from the Government was to say, "We accept it. It shall be an affirmative resolution." When the Bill appeared in draft after Committee, it reflected that by putting a new subsection (5) which referred to an affirmative resolution. As I understand it, the Government then brought forward a further amendment at Report to delete the new subsection (5). They tabled an additional amendment to insert a provision on page 302, line 22, to amend Section 77 of the Criminal Procedure and Investigations Act 1996.

This is a hugely complicated procedure. When we looked at the Bill, it seemed at first blush as though the Government had reneged on their commitment in another place. We knew that was not the case. It would not have happened. But nobody could find where this amendment was. It was only when we spoke to the advisers of the noble and learned Lord that we were told what had happened. We believe it is important for clarity for those who have to deal with this Bill when it becomes an Act that the commitment of the Government is made clear. I would be grateful if the noble and learned Lord could confirm his understanding that the life history of Amendment No. 110 is as I have described it. I beg to move Amendment No. 106.

Lord Goldsmith

I shall speak to Amendments Nos. 106, 110 and 111. Amendments Nos. 106 and 111 relate to procedure for the cross-service of initial and updated defence statements respectively. Clause 32(1) seeks to fill a gap in the disclosure procedure drawn to the Government's attention by the Criminal Bar Association, namely, whether it was possible for the court to order the cross-service of defence statements. Since this Bill was introduced, on 22nd November 2002 the Court of Appeal, in the case of Regina v Cairns and Others, held that the court could indeed order cross-service. This clause still provides useful statutory backing to the Court of Appeal's decision. There is no objection in principle to cross-service. We are dealing here solely with the procedure to be followed. As the amendments are drafted, they would require the service of the co-defendants' statements on the prosecutor and their cross-service all to take place simultaneously. I do not think this is practical or, in many cases, desirable.

Subsections (1) and (3) of the clause make it clear that the power to order cross-service of initial and updated defence statements to co-accused is one for the discretion of the judge, either of his own motion or on application by any party. Subsection (1)(5D) also deals with the time when the statement should be served.

In the exercise of its discretion, the court would need to determine whether the defence statement in a case should be submitted simultaneously or whether there should be some different order as to time. If no statement were served until it had been proved to the satisfaction of all the defence teams that service would be simultaneous, that could delay and complicate the trial. For example, the illness of a single defendant could delay disclosure. Moreover, a delay in the prosecution's receipt of the initial defence statement would delay further prosecution disclosure to the disadvantage of defendants. That would not be acceptable. I understand the motivation underlying the amendments, as debated in Committee in another place, that one co-accused should not be able to derive an advantage from delaying his own statement until he has seen the line to be taken by the other defendants at the trial. However, we can safely rely upon the discretion of the judge in ordering cross-service to take account of this consideration.

Amendment No. 110 seeks to remove the power which subsection (4) of the new Section 6A of the Criminal Procedure and Investigations Act 1996 confers on the Secretary of State to make regulations on the details of matters to be included in the defence statement. Clause 32 as a whole addresses well-founded concerns which have been expressed and confirmed by research, as to the inadequacy of many defence statements. The changes it makes to the defence statement procedure are intended to remedy a problem of non-compliance which arises to some extent out of the fact that the present defence statement requirements are too vague. We hope that the changes introduced by new Section 6A will have the desired effect in improving the quality of defence statements. But the regulation-making power will enable further more specific and detailed guidance on their contents to be issued if it proves necessary. It will enable us to respond more quickly and flexibly to any need for further guidance which may arise than is possible with primary legislation. The regulation-making power enables the Secretary of State to add detail to—or vary the detail of—matters which are to be included in defence statements. Those matters are identified in the primary legislation.

I turn now to the question that the noble Baroness put to me about the provisions of a form of resolution. The amendment on Report in another place was a technical one. It put the provision in the correct place in the Criminal Procedures and Investigations Act 1996. It was moved from the new Section 6A to Section 77 of the CPIA which deals with parliamentary procedures for all secondary legislation under the CPIA. I can confirm that it is still the affirmative procedure and does satisfy the undertaking which was given in Committee, as the noble Baroness knew it would. I hope for those reasons it is clear why I cannot accept these amendments.

Baroness Anelay of St Johns

I am grateful to the noble and learned Lord for his response. He confirmed that the life history of Amendment No. 110 as I described it was accurate. We can all rest assured. With regard to Amendments Nos. 106 and 111, I appreciate that there are practical difficulties. Like the noble and learned Lord, I am prepared to leave it to the judge to resolve those matters of cross-service. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 107 and 108 not moved.]

[Amendment No. 109 had been withdrawn from the Marshalled List.]

[Amendments Nos. 109A to 111 not moved.]

7 p.m.

On Question, Whether Clause 32 shall stand part of the Bill?

Lord Ackner

Clause 32 links with Clause 33—the next item that we shall come to—and I have company in my attempt to persuade the Committee that Clause 33 should not stand part of the Bill. I base my approach to this matter essentially on what is in the memorandum filed in the Library of the House by the noble and learned Lord the Lord Chief Justice following the debate on the legislation. The relevant part reads as follows: We understand the motivation behind the provisions in the [Criminal Justice Bill]. It is to redress what is perceived as an imbalance between the obligations of the defence and the prosecution. But the judiciary are concerned that the balance is being pushed too far the other way—for example, the notification requirements on the defence will be more rigorous than those on the prosecution. Sanctions are included in relation to non-compliance with the defence obligations without any equivalent sanctions being referred to in relation to the prosecution. These distinctions are likely to interfere with the spirit of co-operation which is required to exist between the prosecution and the defence when conducting this important part of the pre-trial process". It then goes on to deal with the issue of experts, but that is the subject matter of the next clause. Basically, those are my reasons for lumping together Clause 32 and Clause 33, which we have not yet reached.

Baroness Kennedy of The Shaws

I join the noble and learned Lord, Lord Ackner, in expressing concern about this requirement on disclosure for the defence. In principle, the defence should disclose the areas of evidence which it will contest. The argument for introducing those changes, which took place some years ago, was to prevent an ambush of the prosecution by providing a defence which the prosecution could not then investigate in any way.

The new defence statement works very effectively in laying out the parameters of the defence. Because the present arrangements have worked rather well, I want to understand fully what is being sought here and what the Government feel is not happening. I am concerned that, by now expecting far more detail than ever before, the police will be burdened with an incredible bureaucracy. They will be expected to pursue witnesses and to investigate whether the detail given by the defence will be useful to the Crown.

We are seeing, first, an erosion of the presumption of innocence and, secondly, an erosion of the burden of proof, which rests with the Crown. That is quite an alarming change. I believe that the defence should outline the position, but I express concern about this provision. I know that that concern is shared by my noble friend Lady Mallalieu, who, unfortunately, was unable to stay for the debate on this clause. Our concern arises following many years of experience in the criminal courts. The opposition to the Question whether Clause 32 shall stand part sits alongside opposition to Clause 33 because the two go together.

Why is there an expectation that more should be disclosed and passed to the Crown? As well as being contrary to the burden of proof, one introduces into the need for co-operation on both sides a concern that, by giving out information on witnesses whom it is intended to call but who ultimately might not be called, witness intimidation will occur. That was always a concern. The intimidation need not be direct; sometimes it may result from what the witnesses themselves feel.

We had the terrible experience in some major miscarriages of justice of witnesses being seen by the police and then disappearing into the ether because they were frightened of being prosecuted themselves. I acted in the Guildford Four appeal. Carole Richardson was one of those convicted and she spent many years in prison. A witness could have shown that she was with him when the explosion took place—or certainly that she was with him within the parameter of time which could not have allowed for her participation. Yet that witness did not come forward. He had felt so threatened by the police that he did not make himself available and, of course, those acting for the Crown did not let anyone know that they had seen him.

Therefore, real concerns arise about this provision interfering with the system of justice. I believe there is concern among practitioners that not only does it provide scope for the intimidation of witnesses but, as the judiciary have indicated, that it is a balancing that goes too far. I should like the Minister, who I know does not have experience of practising in the criminal court, to explain why the provision is necessary. The dynamic of a trial is that it changes all the time. Sometimes one decides not to call witnesses and sometimes one decides that one does want to call witnesses. Why should a person be expected to make that disclosure beforehand? To what end is that intended?

Lord Renton

I was interested to hear the noble Baroness say that she was involved in the trial of the Guildford Four. It so happens that some years before that I was Recorder at Guildford for three years. I am very glad that she said what she did—in particular, as she stressed, that the burden of proof must remain upon the prosecution.

However, if the provisions of this clause and the two later ones come into force, I am afraid that the doubts that I have had for some time about the 1996 Act will be increased. In Clause 38, in particular—I know that it is slightly outside the scope of this matter but it is relevant—and in other clauses the burden of proof could appear to be moved on to the prosecution but on somewhat technical grounds. That is not part of our fundamental principle of justice in criminal actions.

Therefore, I believe that the noble and learned Lord, Lord Ackner, has performed a valuable service in opposing the Question whether Clause 32 stand part. I hope that I am not being outrageously irrelevant if I say that that is an example of our having to take great care about changes that may be made in the judicial composition of this House in future.

Lord Clinton-Davis

Like other noble Lords, I am deeply concerned about this provision. I believe that the noble and learned Lord, Lord Ackner, has done a service by insisting that Clauses 32 and 33 should run together. I hope that my noble and learned friend will take this opportunity to think again about the proposal outlined here, as addressed by a number of noble Lords.

I have a lot of experience of criminal trials, although I gave up at the end of 1984. I learned that co-operation between the prosecution and defence is vital. I am worried that in their rush to deal with ambush defences, which the Government think are a real problem, although I do not, the Government are trying to prevent the House of Lords reaching a reasonable solution on this issue. Anything that impedes or impairs that degree of co-operation is likely to cause immeasurable harm in practice.

The prosecution trusted me—a great deal depends on trust—and I found that in discussions with the prosecution, whether it was represented, or with the police themselves, it was possible to reach a solution that both sides found equitable. I cannot think of an occasion when the prosecution, or for that matter, the defence, were unreasonable if they were properly represented.

I find it impossible to accept that the balance to which the noble and learned Lord, Lord Woolf, referred should be pushed quite as far as it is being pushed at the moment. My view is that the balance is about right. I am not against any change whatever, but it is important to preserve some balance. What my noble and learned friend has in mind is unacceptable. It is being said that the prosecution is disadvantaged by the present law, but it is not.

As I said, a great deal depends on trust. If a dishonest solicitor appears for the defence, that trust will be affected. Equally, a prosecution that is sanguine about revealing essential issues affecting prosecution witnesses would also be unacceptable.

However, in practice it does not work like that. I ask my noble and learned friend to think again about this issue. I hope that it will not be pressed to a Division tonight, but I cannot promise not to return to it later in our considerations.

7.15 p.m.

Lord Goldsmith

I am grateful to those who have spoken and, of course, I respect their views.

I shall spend a few moments on Clause 32, which is the clause that we are considering, although the debate has, understandably, ranged more widely. There are three different provisions. First, Clause 32 deals with the contents of a defence statement and updated defence statements. I shall say more about that in a moment, but it gives more detail to existing obligations under the 1996 Act, which noble Lords on the Conservative Benches will certainly wish to support, as it follows on legislation for which they were responsible.

Secondly, on the point to which my noble friend Lady Kennedy of The Shaws referred, Clause 33 deals with the notification of intention to call defence witnesses. It gives rise to an issue that has been touched on in another place, and it will be necessary to say something about it—specifically on the question raised by my noble friend about whether it might result in witnesses being somehow intimidated.

Thirdly, we shall come separately to Clause 34 on the notification of names of experts instructed by the defendant.

As it applies to all those clauses, I shall start with what the Lord Chief Justice said in his important statement that was placed in the House following Second Reading. He, and the judges for whom he spoke, as I understand it, say: Problems in relation to disclosure have been a significant impediment to proper conduct at trials. The problems have related both to the prosecution and to the defence and have resulted in acquittals, cracked trials and prolonged arguments as to abuse of process". I noted that my noble friend Lady Kennedy talked about the present situation working effectively, but that is by no means a universal view. On the contrary, let me identify what others have said. Independent research commissioned by the Home Office concluded that in 52 per cent of cases with a defence statement, it either contained a bare denial of guilt or did not meet the requirements of the existing provision.

The report said that most judges, barristers, CPS respondents and defence solicitors agreed that defence statements had not narrowed the issues at trial. While the point has been made that such statements are intended to avoid ambush defences, there is an important reason apart from that, which is sensibly to narrow the statement to know what is and what is not an issue. If everything is an issue, so be it. But if everything is not an issue, let that be identified at an earlier stage so that the court can sensibly manage the case.

When I have asked the question, the view almost to a man—or to a woman, I should say—has been that the present system of defence statements is on the whole not working.

My noble friend Lord Clinton-Davis asks me to think again. I assure him that it is a matter about which I have thought long and hard, as have other members of the Government. I shall then speak about the structure.

Lord Clinton-Davis

Before my noble and learned friend does so, he says that everybody who has been consulted agrees with the Government. I am afraid that that is not right. The Law Society, the Bar Council, Justice, and a host of others do not agree with the Government. What does the Minister have to say about that?

Lord Goldsmith

I said that everyone to whom I have spoken agrees that the present system of defence disclosure is not working effectively, despite what my noble friend Lady Kennedy says.

Defence disclosure has two functions. It is a trial management tool. It also presently informs the duty of continuing disclosure, which rests on the prosecution. The research has demonstrated that the system is not working.

Lord Justice Auld's comments are worth reciting because of their importance and the distinguished position that he holds, together with his great experience. Lord Justice Auld states: I do not see it as an attack on the prosecution's obligation to prove its case and the defendant's right of silence that he should be required to identify the allegations or facts that he intends to put in issue. It does not require him to set out his defence other than by reference to what he disputes. If he intends to put the prosecution to proof of everything, he is entitled to do so. But if his intention is, or may be, to take issue only on certain matters, the sooner he tells the court and prosecutor the better, so that both sides know the battleground and its extent". It was the distinguished Runciman Royal Commission, from which the 1996 provisions come, that considered that defence disclosure was justifiable and legitimate.

We are seeking to tighten up the sanctions for inadequate defence disclosure in a relatively modest way. These things can be done if a defence disclosure is inadequate. First, the judge has the power to warn the accused of the possible consequences of an inadequate defence disclosure. Secondly, the judge has the power to direct that the defence statement be given to the jury. Thirdly, the prosecution and other parties will be allowed to comment on defence disclosure failures, without the leave of the court in many cases. There is nothing there to prevent a defendant calling evidence, even if he has not given notice of it. Nor is there anything about denying the defendant the ability to raise a defence even though he has given no notice of it.

I note what is said by the noble and learned Lord the Lord Chief Justice, cited by the noble and learned Lord, Lord Ackner. With respect, however, I differ on this occasion from the proposition that the obligations on the defence are more arduous than those on the prosecution or that the sanctions are more serious. This is a very important point, so I will make it well. The obligation on the prosecution is not only to give the names of its witnesses, but to serve every witness statement on which it intends to rely and every document it intends to put before the court.

More than that, the prosecution is obliged to provide to the defence all the material in its possession that may be of assistance to the defence or undermine the prosecution even though the prosecution does not intend to rely on it. With respect, I must say that that is a far more onerous obligation than that on the defence to give details of the defence but not the witness proofs, and to identify witnesses it may intend to call.

Baroness Kennedy of The Shaws

I hesitate to interrupt my noble and learned friend the Attorney-General, but it is very important that we do not swallow this idea of the level playing field, without recognising that there can never be a level playing field between the defence and Crown, because of the huge resources available to the state. The state has at its disposal the police, who can investigate and trace witnesses and have huge resources. Such a resource can never be balanced with that of the defence. That is why one takes account of that in the level of the disclosure expected of each side. That is why there is such difference.

We must also take account of the fact that the burden is on the state because it is able to punish at the end of the day. To talk about levelling the playing field is not reflecting the reality of the arms on either side.

Lord Goldsmith

I do not recall using the expression "levelling the playing field". I have not suggested that the defence obligation should be the same as prosecution obligations at all. I was making it clear that the sanction proposed—being able to invite the jury ultimately to draw an inference from a change of case—is modest. I challenge the proposition that the obligations placed on the defence are more onerous than those on the prosecution. They are plainly not.

What are the sanctions that may be imposed on the prosecution if it fails to give disclosure? I deal with this, despite what the noble Baroness said about my experience, every day of the week. Prosecutions are constantly in difficulties because a disclosure has not been made which, it is alleged, ought to have been made and an application is made for the trial judge to stop that case. Cases are being stopped completely. People are being acquitted because of a failure by the prosecution to give disclosure. Evidence is excluded on the grounds that there has not been proper disclosure by the prosecution and that therefore it should not be admitted. A strong sanction is placed on the prosecution; a much stronger sanction than that of inference.

Many people outside Parliament would say that it is common sense to draw an inference in appropriate cases that a person's defence is not to be believed because they first said one thing and then said something else. It is one of the tools by which we in everyday life judge the veracity of a person. If they first say that there was an accident and then they say, "I didn't do it at all", many would say that we ought to be able to take that into account. At the moment, judges would allow that to happen. I do not want to go further than is appropriate to deal with a particular clause.

Lord Ackner

I am very grateful to the noble and learned Lord the Attorney-General for allowing me to intervene. He criticised what is to be found in a memorandum deposited by the Lord Chief Justice, which is unfair. I stopped reading at paragraph 9 to avoid being told that I was extending my attempts to stop Clause 2 standing part of the Bill by going to other clauses. The memorandum points out that the balance is being pushed too far the other way with regard to Clauses 31 to 38. The noble and learned Lord the Attorney-General did not read this part out. I did not read it either, but if he is going to criticise the statement deposited we should bear it in mind. The paragraph entitled "Experts" states: The defence is required, not only to identify an expert who is to be called as a witness, but also an expert who has only been instructed. It is not clear what legitimate use can be made of the information about 'unused' experts that the defence is under an obligation to supply. This procedure must not be used as a backdoor way of obtaining privileged information. If the aim is to eliminate 'duff' experts, a much better way forward would be to pursue the accreditation proposals that have been put forward with the support of Judge Thorpe". The report continues: Again, this is an example of unequal treatment. If the prosecution go to four experts and only choose to call one they are not required to give that information to the defence, whereas the defence are required to provide such information. The question arises as to what use is to be made of the names of experts instructed by the defendants. Is it intended that they should be interviewed by the police? If so, this could be highly undesirable because, in order to instruct an expert, it is often the case that privileged information has to be given to the expert. Are questions to be asked at the hearing by the prosecution about experts instructed by the defence who are not called? If so, should not the defence be in a position to ask similar questions about the prosecution's experts. The explanatory notes are silent as to the purpose of requiring a defendant to make disclosure as to experts instructed".

Baroness Anelay of St Johns

Before the Attorney-General responds to that, perhaps it may be helpful to the Committee if I make clear that the noble and learned Lord, Lord Ackner, appears to have taken us forward into Clause 34 and to a further grouping of amendments that I have tabled, in which Amendment No. 133, in particular, is intended to address those issues. I shall save my remarks until we reach that point.

Lord Goldsmith

As I said earlier, I was trying to avoid drifting into other clauses, while understanding why noble Lords were referring to them generally to make their points. In response to the noble and learned Lord, Lord Ackner, I was of course not criticising the noble and learned Lord the Lord Chief Justice or his statement. I was respectfully taking issue with the proposition that the obligations on the defence are more onerous than those on the prosecution—I respectfully submit that they plainly are not—and with the proposition that sanctions are included for non-compliance with defence obligations without any equivalent sanctions being referred to for the prosecution. I was saying that the sanctions by which the court can exclude evidence or stop a prosecution altogether and call for a defendant to be acquitted seem to me, with respect, to be powerful—and more powerful than those that we intend to allow a judge to impose, or to be imposed, for non-disclosure here.

Even in relation to the point about experts—although I do not want to trespass too far—with respect, the statement of the noble and learned Lord the Lord Chief Justice suggests that the prosecution would be able to conceal the fact—of course, he does not use that language—that it has shopped around among experts. I respectfully beg to differ. If the prosecution has been to other experts and decides not to call them, it is highly likely that it will have to disclose not just the names of the experts but their reports as unused material, because they are likely to undermine the prosecution or assist the defence case. So, with respect, I do not accept that point.

I return to the fundamental point. My noble friend Lord Clinton-Davis talked about the need for a spirit of co-operation between the prosecution and defence. I agree. In paragraph 9, the Lord Chief Justice's statement ends by referring to the need for a spirit of co-operation between prosecution and defence. I respectfully agree.

Clause 32, with which we are concerned, imposes modest but important requirements on the defence to indicate the matters referred to. The sanctions to enforce that are modest; they are intended to make something work that has not worked since 1996. The Government's view is that the clause should be supported.

Lord Ackner

At this stage, I do not propose to divide the Committee, but I shall return to the matter on Report, unless we obtain some satisfactory resolution as a result of the debate on the objection to the next clause and the one thereafter standing part.

Clause 32 agreed to.

Lord Davies of Oldham

In moving that the House be now resumed, may I suggest that the Committee begin again not before twenty-six minutes before nine.

House resumed.