HL Deb 17 June 2004 vol 662 cc908-14

1.48 p.m.

Lord Goldsmith rose to move, That the draft order laid before the House on 26 April be approved [16th Report from the Joint Committee].

The noble and learned Lord said: My Lords, this order relates to the code of practice for conditional cautioning, and it will govern the conditional cautioning scheme for which provision is made in Part 3 of the Criminal Justice Act 2003. I recall debating these provisions with noble Lords present today, and we talked then about the code. Publication of the code is a statutory requirement under Section 25 of the Act, and the scheme cannot be implemented until it has been approved by both Houses.

The scheme allows the prosecutor to give a conditional caution, provided that the offender is an adult, admits the offence during a formal interview, that there is sufficient evidence to prosecute, and that the offender understands the effect of the caution and agrees to it.

The scheme is aimed at cases where the public interest would be met more effectively by offenders carrying out specified conditions rather than by being prosecuted. The conditions must either help rehabilitate the offender or ensure that he or she makes reparation for the effects of the offence on the victim or the wider community. Offenders who fail to comply with the conditions may, and usually will, be prosecuted for the original offence. The main considerations in deciding whether a conditional caution is appropriate are the seriousness of the offence, the offender's criminal record and the value of the proposed condition.

In drafting the code, account was taken of the helpful comments made by noble Lords when this part of the Bill was debated, and we are grateful for those comments. After consultation with criminal justice system partners, the Home Secretary published the code in draft on 19 February. During public consultation between then and the end of March, we received 30 responses, in the light of which some minor revisions were made to the draft. The revised draft was agreed by the Home Secretary, the Director of Public Prosecutions and me, and was laid before Parliament on 19 April 2004. It was debated in another place on 18 May.

The code contains advice about the sort of case in which a conditional caution is likely to be appropriate and guidance about the procedures to be followed. The code makes clear that it will be for the prosecutor to decide whether a conditional caution is appropriate, taking into account victims' interests and views, and for the police to administer.

The prosecutor will usually be the Crown Prosecution Service, but the Act allows conditional cautions to be given on the authority of other specified "relevant prosecutors", and the code applies equally to them. The relevant prosecutors listed in Section 27 of the Act are government departments, but there is provision for adding to them by statutory instrument, and consideration will be given to requests by other official prosecutors to be specified for the purpose of using conditional cautions.

Since conditional cautioning will work only if the conditions imposed are carried out, the code prescribes stringent monitoring arrangements. It will be for the offender to prove to the police that the condition has been met. The police will report to the CPS any cases where it has not, including whether the offender claims to have a reasonable excuse. It will then be for the CPS to decide whether a charge should be brought. The expectation is that it usually would.

Conditional cautioning is an important new means of securing the right disposal in a wide variety of cases. That is reflected in the different ways in which it will be brought into effect. If the code is approved today, conditional cautioning will first be used in combination with restorative justice as part of a research project that is due to start next month in parts of London. Then there will be a phased implementation of the scheme in parts of several criminal justice areas starting in the autumn.

The basic conditional cautioning scheme will be used for relatively low-level crime. But in some areas it will involve the use of restorative justice: in others, the drugs intervention programme will be used so that the offender has an incentive to accept treatment. Later, when the first community justice centre begins to operate in Liverpool, it will be able to make use of conditional cautioning.

The code of practice will be supplemented by specific guidance on those aspects as well. The scheme will be evaluated in those areas to see how it works best, to determine best practice and to assess resource and funding requirements. There will then be an opportunity, if it is decided that the scheme should be implemented nationwide, to refine the guidance—if necessary, including the code—before that is done.

I strongly believe that the conditional cautioning scheme will be an important new tool in the criminal justice system, which will help to divert appropriate cases from the court system. It will build on the close working relationship that the police and the Crown Prosecution Service are developing through the new approach to charging, which is a result of the Criminal Justice Act 2003. It will be a good example of positive and constructive working within the criminal justice system. I beg to move.

Moved, That the draft order laid before the House on 26 April be approved [16th Report from the Joint Committed.]—(Lord Goldsmith.)

Lord Hodgson of Astley Abbotts

My Lords, again, we are grateful to the noble and learned Lord for his explanation. On this side of the House we welcome the introduction of the code of practice for conditional cautioning. As the noble and learned Lord the Attorney-General has pointed out, the code plays an important role in detailing the practical workings of the system for conditional cautions. The introduction of conditional cautions in Part 3 of the Criminal Justice Act 2003 was widely welcomed during our debates in Committee on that Act. I shall endeavour not to repeat the questions that I raised on 14 July last year.

The code of practice is pretty thorough in its explanation of the process of issuing and fulfilling conditional cautions, but there are still a few queries that appear to be left hanging unanswered on which some further clarification by the Government could be helpful. Our first concern is about who has the power to give conditional cautions. Noble Lords will see that Section 22(4) of the Criminal Justice Act lists those who are authorised to give a conditional caution. Subsection (4)(c) of that list says: a person authorised by a relevant prosecutor for the purposes of this section". That clearly requires further definition. It is even acknowledged in Section 25.

Section 25 sets out some important provisions that should be included in the code of practice for conditional cautions. Subsection (2)(c) states: The code may, in particular, include provision as to— … the persons who may be authorised by a relevant prosecutor for the purposes of section 22". Paragraphs 1.4 and 1.5 of the draft code of practice are helpful for giving further examples of who might be defined as a relevant prosecutor, but virtually nothing is given to enlighten us as to who the persons are that may be authorised by a relevant prosecutor to give a conditional caution. They are mentioned only at the end of paragraph 1.4 where it states: The authorised person should be suitably trained". Have the Government given any thought to giving a tighter definition of individuals who may carry out that key role in the code of practice?

The second concern involves the timeframe in which a caution is to be handed out. Paragraph 2.6 of the code of practice describes what could happen if the CPS decides on a caution being issued with conditions involving the restorative justice process, to which the noble and learned Lord the Attorney-General referred. It states that, the suspect should be bailed under s37(7)(a) [of PACE] for a period that will allow those processes to take place before the resulting conditions are approved by the prosecutor and the offer of a caution made to the offender". Surely, a time limit should be placed on that period.

As I recall, in Committee, there was general agreement that the conditional caution should be administered as swiftly as possible. While I understand that extra time may have to be taken to decide the most effective restorative conditions, the efficacy of the system could be called into question if there is not some limit to the time in which the prosecutor has to approve of those conditions on the ground, if no other, that undue delay is the enemy of justice.

Our third point concerns the requirements of issuing a conditional caution. Although the list of requirements referred to by the noble and learned Lord in his opening remarks are numbered one to five and there is a simple five-step procedure that an officer must carry out in issuing a conditional caution—the five requirements of Section 23 of the Criminal Justice Act—I do not see either in the Act or the code of practice that it is made explicit that those requirements must be carried out in the order listed.

It would be helpful if that were made explicit in order to avoid the possibility, for example, of someone admitting an offence, signing the document to give his consent to being given the conditional caution and then being told that it will be held on his record and could be disclosed to potential employers. If he had known about that latter point prior to admitting to the offence and agreeing to the conditional caution, he might not have signed the document.

I accept that the ordering of those requirements is indicated by the wording of the Act. It would be hard to carry out the fifth requirement—getting the offender to sign the document—without completing the previous four requirements. Would it not be helpful to make it explicit that requirements 1 to 4 must be fulfilled before requirement 5?

Our final concern involves the monitoring of the offender while he fulfils the conditions of the caution administered. Section 25(2)(h) of the Criminal Justice Act states that the code may in particular give provision to, the monitoring of compliance with the conditions attached to such cautions". In Committee, we expressed a concern about where the burden of responsibility would fall regarding monitoring. We were told by the noble and learned Lord, Lord Goldsmith, that the supervision and monitoring of the conditional cautions would not be carried out by the probation service but by, other agencies including the Crown Prosecution Service".— [Official Report, 14/7/03; col. 660.] We had hoped that the code of practice would further expand on this. It would be helpful if the noble and learned Lord could bring the House up to date on the relationship between the code and Section 26 of the Act, which is entitled, Assistance of National Probation Service".

Paragraphs 10.1 and 10.7 of the code come under the heading "Monitoring and Compliance". That is slightly misleading because only paragraph 10.1 is concerned with monitoring; the remainder concern compliance. The code does not give proper examples of suitable or relevant monitors and who would direct the monitoring beyond the footnote at the bottom of page 9 which states: Monitoring may be carried out by an appropriate agency nominated by the authorised person"— so far so vague, I felt, and continued by stating— This might include the use of Community Support Officers or Neighbourhood Wardens, where available, who could check on the completion of a condition which includes public work in the community".

Are these the "other agencies" to which the noble and learned Lord referred? Will it always be the relevant prosecutor who chooses the appropriate monitor, and will a number of agencies be called upon? If so, which agencies do the Government believe to be appropriate for the task of monitoring? These questions are not really covered in the code of practice.

To summarise, we welcome this code of practice but believe that it could have been further improved if it contained provisions, first, to explain who will be authorised by a relevant prosecutor to give conditional cautions; secondly, to give a maximum time limit between the apprehension of an offender and the issuing of a conditional caution; thirdly, to enforce and make explicit the order of the five requirements for issuing a conditional caution; and, finally, to give a fuller overview of what agencies are expected to supervise the monitoring of the conditions set for offenders.

Those issues apart, we support the order.

2 p.m.

Lord Dholakia

My Lords, Members on these Benches welcome this order on conditional cautioning. It is generally accepted both among practitioners and those who provide voluntary assistance in the criminal justice system that cautioning systems are effective and help many people to stay away from crime. The extension of the cautioning scheme will assist in further building the confidence of the public in the process, provided that it is kept informed about the success of such programmes. Too often, publicity is generated about a few cases of failure rather than the very high success rates that have been achieved.

I welcome the programme on restorative justice because I believe that it is important for victims to become involved. It would be helpful to know how the pilots and other projects involving victims have worked. Ample evidence from abroad suggests that victims who take part in the process show satisfaction following that involvement.

Paragraph 5.2 of the code of practice deals with ways in which reparation may be made under the 2003 Act through work in the community. How do we involve local community groups in identifying reparation projects? The real success of this scheme will depend on the co-operation we receive not only from victims, but also from the community they represent.

Let me explain one other concern I have about the order. Some years ago, when I worked at the Commission for Racial Equality, I undertook a major research project on juvenile cautioning and the police. We looked at all the available evidence from a number of police forces around the country. The striking conclusion we reached, one that was not disputed by the police, was that when all the variables which resulted in the cautioning exercise were taken into account, black youngsters were less likely to be cautioned and more likely to end up in the courts. Cautioning is the gatepost from which either the criminal career begins or the individual is unlikely to offend in the future.

My point in raising this issue, and taking into account the percentage of black people in our penal institutions, is to ensure that there is adequate provision to monitor the conditional cautions administered by the police and the CPS. I am not asking simply for the provisions already set out in the Bill to be followed, rather we should consider whether entry to the cautioning scheme is racially biased. This is important because, despite the code of practice, there is discretion over the way cautions are exercised. That ought not to have an adverse effect on certain sections of our community.

Lord Goldsmith

My Lords, I am grateful for the welcome given by both noble Lords. I agree in particular with the opening remarks of the noble Lord, Lord Dholakia, about the importance of schemes which win the confidence of the community by involving both it and victims, and his point that we need to publicise the success rather than the failure of aspects of the criminal justice system.

I turn to the specific points raised. The noble Lord, Lord Hodgson of Astley Abbotts, picked up on the question about who has the power to give conditional cautions. We debated this at some length when the Bill was going through the House and so I shall put my response briefly: it is for the prosecutor to decide whether a caution is appropriate and what the caution conditions should be. When one talks about an authorised person delivering the caution, it is not an unimportant act, but it is the act of getting the offender to agree to the conditions and to sign them. It is not a decision about whether it is appropriate because that is a matter for the prosecutor. In those circumstances, it is the Government's view that the description of "authorised person" in the Act is perfectly sufficient. It identifies that such a person may be a constable.

Although I am sure that the noble Lord has read it, I draw attention to paragraph 2.4 of the code which makes it clear that the police have no discretion in respect of conditional cautions as they do in relation to traditional cautions. It is for the prosecutor to decide, and it is only where the prosecutor considers it appropriate to do so, that a conditional caution will be granted.

The noble Lord went on to express the hope that conditional cautions would be dealt with speedily, both in determination of the caution and perhaps also in seeing the caution and its conditions through. Paragraphs 6.1 and 6.2 deal with the length of time during which the conditions will operate, recognising that normally one would want the conditions to be concluded within a six-month period, because otherwise it may be impossible to prosecute for the original offence.

Lord Hodgson of Astley Abbotts

My Lords, I thank the noble and learned Lord for allowing me to intervene. It was the first line of paragraph 6.1, stating that the, deadline for the completion of the conditions should not be too long", which excited my interest.

Lord Goldsmith

My Lords, it is right that the deadline should not be too long because the scheme will work best if it is seen to provide a reasonably quick response to offending behaviour. The CPS will endeavour to determine without delay those cases which have to be bailed pending its consideration, but we hope that most cases will not need to be bailed at all. Moreover, the new arrangements now being rolled out nationally, under which prosecutors will be available for face-to-face discussions with the police at the time of the charge—they will be deciding on the charge—will mean that a conditional caution can be the subject of consideration at a very early stage. We shall see how that progresses during the course of the different forms of initial implementation to which I referred earlier.

The noble Lord asked that we should make it clear that the offender should not be expected to sign until he has been told all the things he needs to know in order to consent. That is made absolutely plain on the face of the code, and that is what will happen. In order to give his consent, the offender must be told those things he needs to know for that purpose.

On monitoring and who is to undertake it, subsequent to my remark to which the noble Lord referred when I said that there was a question over whether the probation service would be involved, we included an amendment so that it could be. There was a statutory prohibition, but this House has helped us to get over that problem. However, one of the things we are looking at during the initial implementation of the scheme is the best way to monitor. The probation service will not be involved in most of the schemes I have referred to, except possibly in the restorative justice diversion pilot, but we shall be looking at that as we work through the schemes. At some stage when it is appropriate, I shall ensure that this House is informed of the results of those evaluations, perhaps by way of a short Written Statement. I hope that that will be helpful to the noble Lord.

Finally, the noble Lord, Lord Dholakia, made an extremely important point about ensuring that in this case, as in all other cases, the operation of criminal justice sanctions are not racially biased. I agree entirely with the noble Lord about the importance of that. He will know that work has been carried out—for example, the Crown Prosecution Service Inspectorate has considered the impact of racial elements in other aspects of the work of the Crown Prosecution Service—and I have no doubt that the Crown Prosecution Service and its inspectorate will keep this issue closely in mind—as, indeed, will I.

On Question, Motion agreed to.