HL Deb 29 October 2003 vol 654 cc352-74

8.41 p.m.

Consideration of amendments on Report resumed.

Clause 21[Conditional cautions]:

Lord Hodgson of Astley Abbotts moved Amendment No. 24: Page 16, line 43, leave out paragraphs (a) and (b).

The noble Lord said: My Lords, Amendments Nos. 24 and 25 concern Clause 21, the subject of which is conditional cautions. Those empowered to give conditional cautions are listed in subsection (4) as:

  1. "(a) a constable,
  2. (b) an investigating officer, or
  3. (c) a person authorised by a relevant prosecutor for the purposes of this section".

Amendment No. 24 would restrict the list to paragraph (c)— a person authorised by a relevant prosecutor".

Amendment No. 25 would increase the flexibility by permitting a police officer, but only one of the rank of chief inspector or above.

The amendments were initially tabled in Committee to prod the Government into explaining how and who would decide whether a conditional caution should be given. The noble and learned Lord the Attorney-General explained in Committee (at cols. 662 and 663 of the Official Report of 14th July) that this is the duty of the Director of Public Prosecutions. The police officer might propose appropriate conditions, but it will be for the prosecutor, in general for the Crown Prosecution Service, in the words of the noble and learned Lord, to confirm those conditions and determine that a conditional caution is appropriate".— [Official Report, 14/7/03; col. 663.]

We are extremely grateful for that explanation of how the process will work. However, we still argue that the wording of the Bill is not as clear as the explanation given by the noble and learned Lord in Committee because Clause 21(1) states: An authorised person may give a conditional caution to a person aged 18 or over ('the offender') if each of the five requirements in section 22 is satisfied".

The word "give" on page 16, line 33 gives us difficulty and we think it could be open to misunderstanding. Following from that, under current drafting, a constable could give a conditional caution, but that does not mean that he could, in the words of the noble and learned Lord, determine that a conditional caution is appropriate".— [Official Report, 17/7/03; col. 663.]

In Committee, I suggested that the word "administer" in place of "give" would be more accurate and less misleading. That approach did not commend itself to the Government. If therefore they are determined to persist with the word "give" in Clause 21(1) and all that that entails, then they should accept a greater restriction on the list of authorised persons. I beg to move.

Lord Goldsmith

My Lords, I had thought that the position was clear. We intend conditional cautioning to work by making it the prosecutor's decision to give a conditional caution. That is clear from the five requirements set out in Clause 22, the second of which is that a relevant prosecutor decides two things: that there is sufficient evidence to charge the offender with the offence, and … that a conditional caution should be given to the offender". I suggest to the noble Lord, Lord Hodgson of Astley Abbots, that that brooks no ambiguity or misunderstanding. It is for the prosecutor to decide. With respect, I do not agree with him that in those circumstances the meaning of the word "give" in Clause 21 can change. It cannot mean that it is for the constable to decide, when it is clear in the Bill that it is for the prosecutor to decide.

The noble Lord proposes a scheme in which the officer who administers the caution must be of the rank of chief inspector or above. As I said in Committee, that cannot be an appropriate use of such a senior officer's time. One of our aims is to have an effective and efficient system for conditional cautions decided on by the prosecutor. I do not resile from my comment in Committee that I would expect that a police officer, having received an admission, would say to the prosecutor, "This looks like an appropriate case for a conditional caution", but it will be for the prosecutor to decide— he may agree or disagree. There will be guidance, as required in the Bill, giving even further help on the sort of case in which a conditional caution should exist.

Given the clarity on the face of the Bill, and that the decision will be the prosecutor's, the Government see no need to involve such a senior officer as the amendment would require. I hope that the noble Lord will not press the amendment.

8.45 p.m.

Lord Hodgson of Astley Abbotts

My Lords, I am grateful to the noble and learned Lord. He used the word "administer" a moment ago. That is where our difficulty arises; that is to say, he rightly drew my attention to Clause 22(2). Paragraph (b) states that, a conditional caution should be given to the offender The relevant prosecutor decides whether it should be given. But that is different from what happens in Clause 21, which deals with the process whereby, the decision having been taken, the conditional caution is administered to the person in question. If that were not the case, paragraph (c) of subsection (4) would not appear in the same subsection as paragraphs (a) and (b).

We have a situation where the word "give" first in the decision to proceed with a conditional caution and then in the administration of it is being used interchangeably. That is unhelpful and unclear. They are not the same word and they are different functions, as I read Clause 21 from Clause 22. The noble and learned Lord is shaking his head. Does he wish to intervene?

Lord Goldsmith

My Lords, I am happy to do so. Under the scheme, the individual will be seen by a police officer. Obviously, that is the first stage, because it is as a result of an admission— that is key— that an offender comes within the scheme at all. It is for a prosecutor to decide whether there is sufficient evidence to charge and whether a conditional caution should be given. Once the decision has been made that it should be given, someone must "administer" or "give"— in my respectful submission, it matters not which word one uses— the caution. It is a process of explaining to the person the effect of the conditional caution, as set out in Clause 22(4), and ensuring that the document is signed. There will be other things to be done, but that is what "giving" and "administer" mean.

Lord Hodgson of Astley Abbotts

My Lords, I am grateful for that further explanation. In order to explain fully how the process will work, the noble and learned Lord uses the word "administer" to deal with one function as distinct from another. I understand his point about the five requirements and the conditional caution to be given by the prosecutor under Clause 22(2). Once that has been decided, the: process is an administrative one, the decision having been taken. Clarity is very important. If the Government are not prepared to use a word to distinguish the two different functions, I would like to test the opinion of the House.

8.50 p.m.

On Question, Whether the said amendment (No. 24) shall be agreed to?

Their Lordships divided: Contents, 50; Not-Contents, 65.

Division No.3
CONTENTS
Anelay of St Johns, B. Kingsland, L.
Ashcroft, L. Knight of Collingtree, B.
Attlee, E. Linklater of Butterstone, B.
Avebury, L. Livsey of Talgarth, L.
Blatch, B. Lyell, L.
Bridgeman, V.[Teller] Mancroft, L.
Brooke of Sutton Mandeville, L. Marlesford, L.
Brougham and Vaux, L. Mayhew of Twysden, L.
Buscombe, B. Monro of Langholm, L.
Carlile of Berriew, L. Noakes, B.
Carnegy of Lour, B. Northesk, E.
Courtown, E. Northover, B.
Denham, L. Roper, L.
Dholakia, L. Russell, E.
Dixon-Smith, L. Seccombe, B.[Teller]
Dundee, E. Sharp of Guildford, B.
Fookes, B. Shutt of Greetland, L.
Gray of Contin, L. Steel of Aikwood, L.
Harris of Richmond, B. Stern, B.
Higgins, L. Thomas of Gresford, L.
Hodgson of Astley Abbotts, L. Thomas of Gwydir, L.
Hooper, B. Thomas of Walliswood, B.
Howe, E. Waddington, L.
Howell of Guildford, L. Wakeham, L.
Hurd of Westwell, L. Wedderburn of Charlton, L.
NOT-CONTENTS
Ahmed, L. Evans of Temple Guiting, L.
Andrews, B. Farrington of Ribbleton, B.
Bach, L. Filkin, L.
Bassam of Brighton, L. Gale, B.
Berkeley, L. Gibson of Market Rasen, B.
Billingham, B. Goldsmith, L.
Blackstone, B. Goudie, B.
Borrie, L. Gould of Potternewton, B.
Brennan, L. Grocott, L. [Teller]
Brooke of Alverthorpe, L. Hogg of Cumbernauld, L.
Brookman, L. Hollis of Heigham, B.
Burlison, L. Hoyle, L.
Campbell-Savours, L. Hughes of Woodsde, L.
Carter, L. Hunt of Kings Heath, L.
Clark of Windermere, L. Hylton, L.
Colville of Culross, V. Judd, L.
Corbett of Castle Vale, L. Kennedy of The Shaws, B.
Crawley. B. Kirkhill, L.
Davies of Coity, L. Lea of Crondall, L,
Davies of Oldham, L.[Teller] Lockwood, B.
Dixon, L. Lofthouse of Ponterfract, L.
Dubs, L. McCarthy, L.
Evans of Parkside, L. Macdonald of Tradeston, L.
McIntosh of Haringey, L. Sainsbury of Turville, L.
Masham of Ilton, B. Sawyer, L.
Massey of Darwen, B. Scotland of Asthal, B.
Mitchell, L. Symons of Vernham Dean, B.
Morris of Aberavon, L. Turnberg, L.
Palmer, L. Whitaker, B.
Pendry, L. Wilkins, B.
Pitkeathley, B. Williamson of Horton. L.
Ramsay of Cartvale, B. Worcester, Bp.

Resolved in the negative, and amendment disagreed to accordingly.

8.59 p.m.

[Amendment No. 25 not moved. ]

Clause 22[The five requirements]:

Lord Hodgson of Astley Abbotts moved Amendment No. 26: Page 17, line 12, after "offender" insert ", having taken or refused to take legal advice,

The noble Lord said: My Lords, in moving Amendment No. 26,1 shall speak also to Amendments Nos. 27 and 28. They all relate to Clause 22— dealing with "The five requirements"— which was peripheral to our discussion on the previous amendment. The process of handing out a conditional caution requires that the five requirements be fulfilled. Amendments Nos. 26 and 27 would ensure that the offender is given the opportunity to take appropriate legal advice before agreeing to the caution. Amendment No. 28 deletes the subsection which would enable the document of the caution to be used against the offender.

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

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

We do not wish to replicate all the relevant parts of the PACE regulations in the Criminal Justice Bill. The addition of Amendments Nos. 26 and 27 would act as a failsafe and would not leave this fundamental provision open to any doubt. If Amendments Nos. 26 and 27 should be accepted, we would not wish to move Amendment No. 28.1 beg to move.

Baroness Kennedy of The Shaws

My Lords, in support of this amendment, perhaps I may mention a number of points of which the House may not be aware. Even when someone is cautioned, if an issue of character arises in a criminal case, the caution is placed before the jury. Many people do not understand that. Many people imagine that if issues of character are raised, it is only previous convictions that will go before a jury. But a caution, too, goes before a jury if an issue of character is raised. That therefore has serious consequences.

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

Lord Goldsmith

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

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

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

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

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

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

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

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

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

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

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

Lord Hodgson of Astley Abbotts

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

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

Amendment, by leave, withdrawn.

[Amendment No. 27 not moved. ]

Clause 23 [Failure to comply with conditions]:

[Amendment No. 28 not moved. ]

Clause 24 [Code of practice]:

Lord Hodgson of Astley Abbotts moved Amendment No. 29: Page 18, line 7. at end insert ", in particular the role of the probation service

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

Amendment No. 29 seeks to include the probation service in the fine-tuning of the conditions that are to be set. We discussed this issue in Committee on 14th July (at col. 678 of the Official Report) when a good deal of concern was expressed. The noble and learned Lord the Attorney-General explained at that stage that he wished to resist the inclusion of the probation service as a reference point but added: I hope that noble Lords will accept that I do not wish to say any more until I am able to give a more detailed and considered answer— [Official Report, 14/7/03; col. 679.]

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

The first point concerns its timing. My e-mail in-box shows its receipt as timed at 12.42 p.m. or Wednesday 29th October— that is today, about eight hours ago. It is practically impossible for us to give proper consideration to the points raised in the letter— there are quite a lot of them— and, in particular, to consult with interested outside parties to obtain their comments and reactions. Many noble Lords will regard such discussions as being part of the scrutiny process of the House. It would have been helpful if we had received the letter a little earlier. After all, the Committee stage on this part of the Bill took place on 14th July, three-and-a-half months ago.

Secondly, I draw the noble and learned Lord's attention to a sentence at the bottom of the first page of the letter, which states: Three things will be crucial to maintaining the integrity of conditional cautioning. First, there is the detailed guidance on the use of conditional cautions which is in the course of preparation".

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

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

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

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

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

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

9.15 p.m.

Lord Goldsmith

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

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

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

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

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

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

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

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

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

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

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

I turn to the question of the code of practice. I am sorry that the noble Lord, Lord Hodgson of Astley Abbots, thought that I gave short shrift on the last occasion to the point that he made. It is not that I do not agree that in deciding whether cautions should be given in a particular case one has to have regard to whether it is appropriate in that case; of course, that is right. But it seemed to us then— I regret to tell the noble Lord that it seems to us still— unnecessary to add to the list of things to be put into the code of practice a reference to the role of the probation service or a new item about deciding the appropriate conditions. I repeat what I said on the previous amendment; namely, that the code will have to come before Parliament and then one will see— I hope that noble Lords will agree— that it will be helpful and will adequately cover the areas which noble Lords think should be covered.

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

Lord Hodgson of Astley Abbotts

My Lords, I am grateful to the noble and learned Lord on three counts. It was helpful for him to put on the record in some detail the way in which the scheme will operate. I am also grateful that we now have the position of the National Probation Service clarified. I understand fully the point the noble and learned Lord made that previously it was not possible for it to be involved. I am also grateful that there may be a chance for further discussion on the code of practice when it is produced, which will no doubt be very soon.

It is important to consider the position of people with a mental illness regarding conditional cautions due to their particular vulnerability. However, the noble and learned Lord has given a number of clear commitments and I am happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 30 not moved. ]

Lord Goldsmith moved Amendment No. 31: After Clause 24, insert the following new clause—

"ASSISTANCE OF NATIONAL PROBATION SERVICE

  1. (1) Section 1 of the Criminal Justice and Court Services Act 2000 (c. 43) (purposes of Chapter 1) is amended as follows.
  2. (2) After subsection (1) there is inserted—
    1. (a) authorised persons to be given assistance in determining whether conditional cautions should be given and which conditions to attach to conditional cautions, and
    2. (b) the supervision and rehabilitation of persons to whom conditional cautions are given."
  3. (3) After subsection (3) there is inserted—

On Question, amendment agreed to.

Clause 25 [Interpretation of Part 3]:

Lord Goldsmith moved Amendment No 32A: Page 18, line 28, at end insert— ( ) the Attorney General,

On Question, amendment agreed to.

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

Lord Thomas of Gresford moved Amendment No. 32A: Page 181, line 23, after "bail" insert "for a period of not longer than 35 days

The noble Lord said. My Lords, we return to a topic which we raised in Committee. We are dealing with the depths of Schedule 2 to the Bill. We are concerned to put a limitation on the period of time that pre-charge police bail is granted while a case is referred to the Crown Prosecution Service for a decision whether to charge. There is no such limitation at the moment but there is a tendency for the CPS these days to drag its feet over this— as over almost everything else— and it is wrong that a person should have charges hanging over him for an excessive period.

The noble and learned Lord the Attorney-General in his response on 14th July told us that the Home Affairs Select Committee had recommended such a limit and that the Government had paid attention to the charging pilots which, were suggesting that in most cases a five-week period should be sufficient to enable charges to be brought" —[Official Report, 14/7/ 03, col 684.]

In the amendment that we moved at that time we suggested that 28 days was an appropriate period but at this stage we have adopted the five-week period referred to in the charging pilots, hence this amendment stipulates a 35-day period for police bail before charge.

The noble and learned Lord the Attorney-General also pointed out that it was the Government's view, following the final evaluation report, to have no statutory limit. He suggested that although the period of bail should not be unreasonably long, it would be better for the guidance and instructions to be issued by the Director of Public Prosecutions and the Association of Chief Police Officers to stipulate an appropriate period. He also pointed out the power that exists for a person to go to court and ask for conditions of bail to be varied or discharged.

At this stage, we should like to press the Government on what they have in mind. What sort of guidance will there be? How long is it suggested that the period will be before an excessive period is deemed to have occurred? We have come back to the matter to find out whether the Government have made any progress in formulating guidance and instructions on the topic I beg to move.

9.30 p.m.

Baroness Anelay of St Johns

My Lords, I support the noble Lord, Lord Thomas of Gresford, in the amendments. They reflect accurately the concerns that my honourable friends in another place expressed in Committee, which were not taken further on Report; as we are aware, Report is a very curtailed matter in another place. I, too, should be grateful if the noble and learned Lord could tell the House what further progress had been made on guidance, as it is important to know what period will be considered excessive in such matters.

Lord Goldsmith

My Lords, I am very sorry that the noble Lord, Lord Thomas of Gresford, chose to make the attack on the Crown Prosecution Service that he did in moving the amendment. I noted him as describing it as having a tendency to drag its feet, in this as in most matters. As the superintending Minister responsible for the Crown Prosecution Service, I regard that as an unfair attack on it that ought not to have been made. It does a very important job. Its many professionals up and down the country deal with 1.4 million cases throughout the year, bringing them to the courts, and they deserve rather better than a generalised attack on them in those terms. I have absolutely no hesitation in rejecting that charge.

I shall deal with the length of time for bail. Let the circumstances in which we are referring to bail be understood. We are referring to a system in which the decision to charge will be taken by crown prosecutors in consultation with the police. The circumstances then will be that the custody sergeant will have taken the view that there probably is sufficient evidence to charge the particular individual, and that will then be considered with the prosecutors.

In the large majority of cases, it is very likely that the decision to charge will have been taken within a period of 35 days, the figure referred to in the amendment. However, the Crown Prosecution Service is not the only relevant body; there must be further investigations by the police in certain circumstances. Therefore, there will be cases where the nature of the investigations and the decisions means that a longer time is necessary. I draw attention to the fact that the president of the Association of Chief Police Officers, in an important letter that he recently sent to noble Lords, said that, any artificial time limit on the proposals is undesirable. Evidence can, of necessity, take time to prepare. If artificial time limits are imposed, when the prosecution have no control over the availability of evidence, they will lead to escalating costs, unnecessary hearings and discharged cases. Instead, each case should be closely monitored". What would happen under the amendment if the 35-day limit was reached and the police and prosecution were not in a position to charge? There is no provision in the amendment for renewal of bail by the police. What would happen if the person presented himself at the police station? There would be only two choices: either the conditions which the police thought to be necessary and appropriate in the case of that defendant would have to be abandoned, or the defendant would have to be charged there and then. That would reduce the benefits of a scheme in which a considered decision is taken so that cases which should not be in the system are dropped and that others go forward in a well prepared and focused way.

I reiterate that we are discussing bail and not custody. Conditions are attached to it, but the person is still at liberty. However, if he feels that the bail is oppressive and that too much time is being taken, either he can go to the custody officer— who can vary the custody conditions— or, failing that, he can go to the court and ask it to discharge or vary the bail. That would be a more than adequate way of controlling the provision.

I am sorry for having begun on an disagreeable note, but I hope that noble Lords will understand that it is right to make a clear statement about the position of the CPS. For the reasons that I have given, I resist the amendment.

Lord Thomas of Gresford

My Lords, I acknowledge the remarks of the Attorney-General about the CPS and I appreciate why he feels that it is necessary to leap to its defence. There is no room for complacency in that service. It is not the moment to debate its faults and failings, but he would find it difficult to answer all the charges that are levelled against it. I heard a lengthy complaint myself only two nights ago and I have personal experience of cases being put back and of comments made by judges about it. However, it is not an appropriate moment to debate that topic. Perhaps it is a matter that I can put down for full debate at another time.

Lord Goldsmith

My Lords, I would welcome that. It would be an opportunity to address the generalised points that the noble Lord has made.

Lord Thomas of Gresford

My Lords, the noble and learned Lord is right in saying that they are generalised points. I would make them specific if and when we came to them. On the matter before us, I have heard what he has said and reserve my position, but I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 31 [Defence disclosure]:

[Amendment No. 33 not moved. ]

Clause 32 [Notification of intention to call defence witnesses]:

[Amendment No. 34 not moved. ]

Clause 33[Notification of names of experts instructed by defendant]:

Lord Thomas of Gresford moved Amendment No. 35: Leave out Clause 33.

The noble Lord said: My Lords, the amendment raises important matters of principle relating to defence disclosure. Many issues arise from the clauses that cover it. I do not believe that a Wednesday night is an appropriate moment to raise the issues. The matter requires a fuller House and we shall come back to it at Third Reading. I shall move the amendment in order to hear what the noble and learned Lord says about it, but shall not take it further. I beg to move.

Baroness Kennedy of The Shaws

My Lords, the noble Lord indicated that the matter will not pursued tonight, but the whole issue of disclosure seems arcane to those who are not directly involved with it. That the Bill will require the defence to disclose a list of its witnesses to the Crown and the effect that that will have are matters of concern. Those witnesses will be seen by police. Even with the best will, that could be intimidatory to many people whose evidence may be necessary in seeing that justice is done.

If the police are to visit witnesses and see them in advance of the case coming to trial, there is every risk that people will not come forward. That is the concern of many of us. If we are not to proceed with the matter today, I hope that it will be debated fully and dealt with properly at the next stage of the Bill.

Lord Kingsland

My Lords, I believe that the noble Baroness was referring to a matter which would have been raised by the noble and learned Lord, Lord Ackner, had the noble and learned Lord been here—

Lord Goldsmith

My Lords, it would have been raised in Amendment No. 34, tabled by the noble Lord, Lord Thomas of Gresford, which he did not move. That amendment deals with witnesses, the subject to which my noble friend Lady Kennedy of The Shaws referred.

Lord Kingsland

My Lords, I entirely agree with what the noble Baroness said; but it is not a matter for debate today. I want to refer to Amendment No. 35; and, at the risk of testing the patience of noble Lords, to look at what was said about the matter in Committee.

In Committee, a number of noble— and noble and learned— Lords suggested that, in one way or another, the clause breached the principle of legal professional privilege. In responding to the debate, the noble and learned Lord the Attorney-General sought to reassure your Lordships at col. 732 of Hansard of 14th July 2003. I apologise to your Lordships in advance for quoting a number of extracts from what the noble and learned Lord said.

He said three things about the question of legal professional privilege. First, he said: It does not require that any unused expert report should be disclosed, precisely because of legal professional privilege, the importance and existence of which the Government and I were well aware before the clause was finalised". The noble and learned Lord went on to say, secondly: Equally, legal professional privilege means that it would not be appropriate if an expert was known to have been consulted and was then seen by someone from the prosecution So far, so good. The noble and learned Lord then went on to add to that part of his speech: It would not be appropriate to probe that expert over the opinion that he had given before". The noble and learned Lord then went on to say: It would be inappropriate to ask for information that would indicate material which had been provided by the accused, for example. If it were a psychiatric report— my noble friend Lady Kennedy gave an example in which the psychiatrist based his opinion on an account given by the defendant of what had taken place— that would be privileged information and ought not to be disclosed".—[Official Report, 14/7/03, col 732.] However, at the beginning of the following paragraph in col. 733, the noble and learned Lord added: There are circumstances in which an expert does not have privileged information and where it would not be inappropriate for one party to consult an expert who had been consulted by another Further down the column, the noble and learned Lord explained what he meant by that statement. He said: It would be possible under the clause, provided that the expert was not questioned about the work done for the defendant or asked to give any opinion that would disclose in any way legally privileged material that he had had, for such a person to be consulted and employed by the prosecution". — [Official Report, 14/7/03, col. 733.] But, as I understand it, in those circumstances, such a disclosure is already permitted in law. The noble and learned Lord, himself, said, at the beginning of the preceding paragraph that, in a civil case in which he had been involved in the 1980s, precisely that situation occurred. In response to an intervention by the noble Lord, Lord Brittan of Spennithorne, the Attorney-General said that there is no distinction between criminal and civil law. Therefore, in my submission, if the example that the noble and learned Lord gave of his own civil case is a motive for including this clause in the Bill, it cannot be a proper motive.

The one other reason that the noble and learned Lord gave for including the clause in the Bill was that it is intended to deter shopping around when it is improper. In my submission, that was extremely well dealt with by my noble friend Lady Anelay in her summarising remarks. She asked, why should not the defence be allowed to instruct more than one expert and on receipt of that report then decide whether to rely on it without the threat that the prosecution might leave the court to draw an adverse inference on the defence's decision not to use the expert's opinion?".—[Official Report, 14/7/03, col. 736.] One is inclined to say to your Lordships that that is a very powerful argument. After all, earlier in the Committee stage we heard from the noble Lord, Lord Thomas of Gresford, that, in practice, such a provision is unnecessary anyway because 99.9 per cent of criminal cases are financed by legal aid and the rules of the legal aid system will not allow a defendant to seek to instruct more than one expert.

But surely the most telling reason why your Lordships should not adopt the provisions set out in the clause is this. There is a very good reason why the rules of disclosure for the prosecution, on the one hand, and the defence, on the other, should differ. The prosecution must prove its case beyond reasonable doubt. If its experts differ, there is prima facie doubt and the court must know about that. I suggest that it works in entirely the opposite way for the defence. The reason the defence should be entitled to disclose only its best case is that that is the best way to test the prosecution's obligation to prove its case beyond reasonable doubt. That has been English law for, dare I say it, hundreds of years. Why on earth should the Government second-guess it now?

9.45 p.m.

Lord Goldsmith

My Lords, I note, first, that the noble Lord, Lord Thomas, moved the amendment, although we had debated this issue in Committee and, indeed, divided on it then, although not, I accept, on this precise amendment. However, we divided on an amendment which had substantially the same effect. I do not suggest for a moment that the amendment, as it stands, is not entirely proper and that it could not be the subject of another division. However, we had debated it.

Perhaps I may say, gently, to the noble Lord, Lord Thomas of Gresford, that to say that these matters have been put down for Report but that he does not really want to deal with them now but wants to save them for Third Reading turns Third Reading into even more of a Report stage than perhaps some people think is appropriate. I make the comment and no doubt others will consider whether it is worth elaborating on it at some other time.

The noble Lord, Lord Kingsland, dealt with the substance of the amendment. I am happy to be taken back to what I said in Committee. First, the starting point is that normally the prosecution must disclose the identity of any expert it has consulted but does not call, and any unused reports. Secondly, it is said that there is a problem with some defendants shopping around. I made clear that I accepted— if I did not explicitly accept it, certainly I accept it now— that because of a point made by the noble Lord, Lord Thomas of Gresford, about the likely lack of availability of legal aid for publicly funded defendants, the prospects of that happening are at least small. However, there can remain a problem in cases where defendants are privately funded.

Thirdly, I attempted to give a clear and I hope helpful answer not about motive but about where professional privilege created a difficulty. I accepted entirely that although there had been those who wanted there to be disclosure of experts' unused reports, professional privilege in the Government's view meant that that was not appropriate, so that was not a recommendation that found its way into the clause. I also accepted, as a result, that it would not be appropriate for anyone to go and see an expert to try to discover from him what he had been told by the defendant or what he had said to the defendant. I excepted a theoretical possibility— I indicated anecdotally that it happened to me— of someone whose skill was so forensic that it was acceptable for that person then to give evidence for one side rather than the other. I make it plain that that was no part of the motive. I have no reason to believe that that is a way that this provision would be intended to be used.

Baroness Kennedy of The Shaws

My Lords, I thank the Minister for giving way. I should like to correct two points. First, in the kind of cases where psychiatry is used it is very rare for there to be private representation. In serious criminal cases, legal aid is now available across the board because of the nature of the crime. It is only by choice that people might seek to privately instruct, which is rare. The second matter goes to the heart of this.

Lord Bassam of Brighton

My Lords—

Baroness Kennedy of The Shaws

My Lords, this is a question.

Lord Bassam of Brighton

My Lords, I would remind the noble Baroness that only points of elucidation are to be raised on Report when the Minister is dealing with questions.

Baroness Kennedy of The Shaws

My Lords, but it is very important. Normally, what happens is that when a psychiatrist goes to see a patient in preparation for a report, the first thing the psychiatrist says is, "You realise that anything I ask you I may have to disclose if I am required to do so in the case". So, almost invariably a consent has been given for disclosure but the disclosure is very specifically for purposes of the defence. I am concerned that that permission might be used and I want to know whether the Minister will put on the record that such a consent given by a defendant to a psychiatrist, taking information from him, for example, about the events that took place, will still be covered by privilege even where a consent has been given. I hope my noble and learned friend is following the point. I am asking whether he is prepared to say—

Lord Goldsmith

My Lords, I thought the noble Baroness said she had two questions. I was waiting for the second.

Baroness Kennedy of The Shaws

My Lords, I wanted my noble and learned friend to agree that the example of private representation is so rare that we are really talking about publicly funded work where shopping around is a nonsense. It just does not happen. Does the noble and learned Lord agree that it very rarely happens?

Lord Goldsmith

My Lords, I have just made it clear that there are a few privately funded cases. The considerable majority of cases are publicly funded. I have made that absolutely plain already. I have said that as a result this is something which none the less can arise in privately funded cases. So I have answered my noble friend's question. She may not like the answer, but I have answered it.

My noble friend's second question was to ask me how to interpret consents which are given to psychiatrists in certain cases. I think that I need notice of the question. I shall certainly consider it and write to my noble friend about it. I do not think that I should answer it simply standing on my feet and being faced with it for the first time.

Lord Wedderburn of Charlton

My Lords, will my noble friend put that letter in the Library of the House?

Lord Goldsmith

My Lords, I put all letters that I send to noble Lords arising from debate in the Library. So the answer to that is, of course, yes.

Lord Thomas of Gresford

My Lords, I am very grateful to the noble Lord, Lord Bassam, and to the noble and learned Lord the Attorney-General for illustrating better than I possibly ever could the reason why I do not propose to debate the matter at length at this stage. The whole topic of defence disclosure is extremely important. If these provisions go through, they could significantly alter the balance in a criminal trial from that which the noble Lord, Lord Kingsland— for whose support I am grateful— indicated has been the law for centuries.

It is entirely wrong that a debate on a subject with principles as significant as these should depend on the vagaries of the timetable— there are 20 minutes to go until 10 o'clock, when we are supposed to cease debating it— and on the presence of a very thin House. The whole legislative process is thrown into disrepute if we try to make decisions simply based upon the vagaries of the timetable when various issues come forward for debate. That is the reason why I have not expanded upon the debate we had in Committee and why I shall reserve my fire on a very important topic for Third Reading.

Furthermore, an influential and major speaker on the topic, the noble and learned Lord, Lord Ackner, for reasons that we can well understand is not able to be present at this time of night, although he was in the House earlier this evening. These are all very good reasons for this debate to be delayed.

I shall not listen to gentle hints from the noble and learned Lord the Attorney-General on the topic. I think that it is a matter of considerable public importance. That is the reason why I shall withdraw the amendment at this stage but I give notice that we shall have the kind of debate that was stifled— perhaps "stifled" is too strong a word— or not pursued because the noble Baroness, Lady Kennedy, was out of order under some technical rule of this House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 34 [Further provisions about defence disclosure]:

[Amendment No. 36 not moved. ]

Clause 37 [Faults in defence disclosure]:

[Amendment No 37 not moved. ]

Clause 38 [Code of practice for police interviews of witnesses notified by accused]:

Lord Goldsmith moved Amendment No. 38: Page 27 line 41 alter "officers" insert "and other persons charged with the duty of investigating offences

The noble and learned Lord said My Lords, in moving Amendment No 38, I shall speak also to Amendments Nos. 39 and 40.

In Committee, we addressed the question of the risk that in the hands of over-zealous or unscrupulous police officers undue pressure might be applied to defence witnesses by amending the Bill to require all interviews conducted by the police under the clause to be governed by a code of practice. That is set out in Clause 38.

The amendments will further strengthen the value of the code of practice as a safeguard. As the enabling powers stand, the code of practice would apply only to interviews conducted by police officers. But it occurs to us that interviews with defence witnesses might be conducted by non-police investigators under circumstances where the considerations may not be that dissimilar- for example, Customs or the Serious Fraud Office.

Amendment No. 38 modifies the enabling powers to apply the code to non-police investigators as well as the police Amendment No. 39 requires non-police investigators to have regard to the code Amendment No 40 provides that a failure to have regard to the code will not in itself expose a non-police investigator to criminal or civil proceedings. In short, therefore, the amendments extend the safeguard that we have already accepted and put into the Bill to non-police investigators I hope that noble Lords will agree that that is a useful and important additional safeguard. I beg to move.

Lord Thomas of Gresford

My Lords, it is indeed useful tinkering with the Bill, and we agree with it. It does not go to the fundamental principles with which this section of the Bill is concerned. We will support the amendments.

On Question, amendment agreed to.

Lord Goldsmith moved Amendments Nos. 39 and 40: Page 28, line 11, after "officer" insert "or other person charged with the duty of investigating offences Page 28, line 41, leave out "police officer" and insert "person mentioned in subsection (3)

On Question, amendments agreed to.

Lord Bassam of Brighton

My Lords, I beg to move that consideration on Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.