Criminal Justice and Courts Bill

Lord Ahmad of Wimbledon Excerpts

Monday 14th July 2014 Lords Chamber

[Lord Ponsonby of Shulbrede]

I take the point the noble Lord has made. I was really seeing this in the wider context of not just cautions but of out-of-court settlements as a whole. As we know, in London, for example, there are many tens of thousands of out-of-court settlements. Many of them are not cautions but other forms of out-of-court disposals which should be addressed by the scrutiny panels as and when they are running. Nevertheless, the point the noble Lord, Lord Marks, made is a fair one, and I acknowledge it.

[Lord Ahmad of Wimbledon (Con)]

My Lords, although some of the contributions were about the group that follows and the stand part on Clause 15, I will speak to the amendments in this group. If noble Lords have any additional comments when we get to the next group, I shall cover the specific issues relating to Clause 15 at that time.

The amendments tabled by my noble friend Lord Marks, while well intentioned, would have a detrimental effect on how simple cautions are administered. It is only right and proper that cautions are given only when justified. Serious offences should be prosecuted and offenders should not be able to get off with a simple caution. It is therefore right that the decision to administer a simple caution is taken at the most appropriate level commensurate with the offending behaviour. The propositions set out in Clause 15 follow the review of simple cautions conducted by the Government last year and were developed in conjunction with the police and the CPS.

Perhaps I may refer briefly to Clause 15. It already creates the appropriate levels of authorisation based on the seriousness of the offence when deciding whether to give a simple caution. Amendment 21 would affect the provisions on indictable-only offences. The clause provides that a simple caution can be given only for such an offence where a police officer determines that there are exceptional circumstances and the Director of Public Prosecutions consents. The noble Lord, Lord Kennedy, asked for examples of exceptional circumstances and when it would be appropriate for the police to administer a repeat caution. I do not want to be drawn at this juncture into trying to determine what “exceptional circumstances” should or could mean. They are operational matters that would be unique to each case. However, there is specific guidance to this which is used by the police, and those factors are taken into account when determining where there are exceptional circumstances. Specific examples include the age of the offender, culpability, remorse and the mental health of the offender.

The rank of the police officer will be specified by order made by the Secretary of State. However, we anticipate that the order will specify the rank of at least superintendent. This mirrors the position in the current guidance on adult simple cautions. The amendment would remove the senior police officer from the decision-making process. In practice, the role of the DPP will be undertaken by the Crown Prosecution Service. The regional office of the CPS should be best able to determine for operational reasons who should make a decision about whether a simple caution for an indictable-only offence should be given, and it is not right that we should restrict this to the regional chief crown prosecutor. In practice, the chief crown prosecutor may well determine that the decision is his or hers to make, but we should not be so prescriptive as to set this out in legislation.

Amendments 22 and 23 would require the regional chief crown prosecutor to decide whether to give a caution for a specified either-way offence, and separately non-specified either-way and summary-only offences where the offender has been convicted or cautioned for a similar offence within the last two years. The clause as drafted makes it clear that these decisions must already be taken by a police officer of a rank specified by the order made by the Secretary of State. It is envisaged that the Secretary of State will determine that the decision to give a simple caution for a specified either-way offence will be made only by an officer of at least the rank of inspector. For non-specified either-way offences and summary-only offences, it is envisaged that an officer of at least the rank of sergeant will determine whether a simple caution should be given. Escalating all these decisions to the regional chief crown prosecutor would hugely slow down the decision-making process to administer a simple caution and would increase the burden of bureaucracy on both the police and the CPS. In difficult cases the police can always consult the CPS. It is also worth noting that the public interest test in Amendments 21 to 23 is already exercised by the police and, where relevant, the CPS under the existing guidance on simple cautions when determining whether to give a simple caution. It is also anticipated that revised guidance will require the public interest test to continue to be exercised in the same way, and therefore there is no need to replicate this in statute. It is a level of detail that is best set out in guidance.

Amendment 24 seeks to ensure that a senior police officer would determine whether there are exceptional circumstances such that a simple caution can be given where it otherwise would not be, and whether an offence is similar to a previous offence. It is only right and proper that simple cautions should be given only when justified. Serious offences should be prosecuted and offenders should not be able to get off with a simple caution. It is therefore right that the decision to administer a simple caution is taken at the most appropriate level commensurate with the offending behaviour.

--- Later in debate ---

[Lord Kennedy of Southwark]

My Lords, as I said on the previous group of amendments, we support this clause and the intention to oppose its standing part of the Bill is just a device to enable a debate to take place.

These amendments in the name of the noble Lord, Lord Marks, would remove the power of a police officer to determine whether there are exceptional circumstances under which an individual can be cautioned, and would also remove the power of the Secretary of State to change the period of time from the current two years which can be taken into account and counted as a previous conviction. It is important to provide a police officer with the ability to make this determination. I was pleased to hear the comment about a senior police officer being involved. The proposal to remove a power of the Secretary of State in this regard is not one that we are persuaded to support. However, I hope that the noble Lord, Lord Ahmad, will explain the intention behind these powers and the government process for determining whether they should be used. What parliamentary process will be used? It is important that there is adequate opportunity for robust challenge and scrutiny of what the Government are doing. I have no other remarks to add on cautions other than to say that there is concern about their use for indictable offences. We support the intention behind the clause.

[Lord Ahmad of Wimbledon]

My Lords, I thank my noble friend for tabling the amendment. I also thank the noble Lord, Lord Kennedy, for his general support in principle for the intention behind Clause 15.

Clause 15 places restrictions on the use of simple cautions by a constable. Simple cautions provide a means for a constable to deal with a person aged 18 or over who has admitted to committing an offence in England and Wales. A caution is primarily designed for dealing with low-level, mainly first-time, offending. While the use of cautions has been falling, it is clear that there are problems with how they are being used in certain circumstances.

The Government are clear that serious offences should always be brought to court. The Ministry of Justice publishes non-statutory guidance on how a simple caution should be used and the circumstances when a caution would not be considered appropriate. These provisions stem from the simple cautions review, which was itself prompted by public concern about the apparent misuse of simple cautions by the police for seemingly serious offending behaviour. The review set out to examine the way in which simple cautions were being used and consider the need for any changes to ensure that there continues to be public confidence in the use of simple cautions.

The outcomes of the review were published in November last year and concluded that simple cautions should not be used for indictable-only offences and certain serious either-way offences. These include possession of a knife, offensive weapon or firearm in a public place, offences involving child sex abuse or child pornography, and supplying Class A drugs. The MoJ guidance on the use of simple cautions was updated as a result and provides that a simple caution should be given for these offences only where a senior police officer believes that there are exceptional circumstances. I heard what the noble Lord, Lord Kennedy, said about further discussions on this. I am sure that we will have further detailed discussions on definitions.

The guidance also makes it clear that for all other offences a simple caution should not be given where a person has been convicted or cautioned for a similar offence in the past two years. The Government have now decided to put these restrictions on the use of simple cautions on a statutory footing. This clause therefore provides that a simple caution may not be given for indictable-only offences, unless there are exceptional circumstances to be determined by a senior police officer, and the Crown Prosecution Service also needs to consent.

This clause also provides that a simple caution may not be given for certain serious either-way offences unless there are exceptional circumstances to be determined by a senior police officer. The list of serious either-way offences subject to this restriction will be set out in secondary legislation. Furthermore, for the remainder of either-way offences and all summary-only offences, the clause provides that a simple caution may not be given where the offender has been convicted or cautioned for a similar offence within the previous two years, unless there are exceptional circumstances. The clause provides for the minimum rank of a senior police officer who determines whether there are exceptional circumstances and whether the previous offence was similar to be specified in secondary legislation. The two-year period between current and previous offending behaviour may also be amended by secondary legislation.

Our priority is to stop the cycle of reoffending and ensure that serious offences are dealt with by the most appropriate method. Criminals should not get caution after caution for committing the same offence time and time again, often for serious offences. The public needs confidence that cautions are being used appropriately. This clause helps ensure that this happens and will provide clarity for front-line practitioners. In developing these proposals we have worked carefully with the police and prosecuting agencies to ensure that simple cautions are used effectively and appropriately. The clause should therefore stand part of the Bill. I give this explanation in order to highlight some of the detailed reasons for the Government’s thinking behind Clause 15.

Amendments 25, 26 and 27 would remove the Secretary of State’s power to specify, by way of order, the minimum rank of police officer who will take certain decisions. The amendments also remove the Secretary of State’s power to change the two-year period when considering previous offending history in relation to non-specified either-way offences and summary-only offences. By tabling Amendment 25, my noble friends Lord Marks, Lord Dholakia and Lady Hamwee would remove the power to specify by order the minimum rank of police officer who may determine exceptional circumstances—for example, when giving a simple caution for an indictable-only offence or a specified either-way offence, and when giving a simple caution for a non-specified either-way offence or summary-only offence where the offender has been convicted or cautioned for a similar offence in the past two years. This means that there would be no restriction as to the rank of officer that would be able to make these decisions under Clause 15(2)(a), 15(3) and 15(4). This would mean, in effect, that the most difficult decisions as to whether to administer a caution for the most serious offences, and for repeated offences, could be taken by the most junior constable. This plainly cannot be right.

The simple cautions review made specific recommendations on the rank of officer that ought to take certain decisions. These recommendations were taken forward in the revised guidance on simple cautions, published by the MoJ on 14 November last year. It is anticipated that the order-making power, exercisable by the Secretary of State in relation to determining the rank of officer who can make such decisions, will replicate the provisions of the guidance. Namely, a superintendent or rank above will need to make the decision that exceptional circumstances exist so as to give a simple caution for an indictable-only offence. In addition, an inspector or rank above will need to decide that there are exceptional circumstances that justify giving a simple caution for a specified either-way offence or for a non-specified either-way offence or summary offence where the person has been convicted or cautioned for a similar offence in the past two years. It is important that we are clear on who can make these decisions and that there are restrictions on it.

Amendments 26 and 27 would remove the ability of the Secretary of State to amend the two-year period within which repeat cautions should not normally be given in relation to non-specified either-way and summary-only offences. This is a necessary provision. We are basing the two-year period on the same period set out in the guidance published by the MoJ that currently determines how simple cautions for such offences should be given. There may in the future be reasons to extend or, indeed, shorten the time period. The Government may wish to determine that repeat simple cautions should not ordinarily be given unless there are exceptional circumstances within a five-year period or, conversely, within a one-year period. This is the first time that we are placing statutory restrictions around the use of simple cautions, and there needs to be flexibility in order to ensure that the restrictions work properly. It is also worth noting that any such order made by the Secretary of State amending the time period must be made by the affirmative resolution procedure, and so Parliament will have a say in any change proposed.

I know that I have given a rather detailed explanation of the Government’s position but, in doing so, I hope that I have given enough reassurance and detail that my noble friend will be minded to withdraw his amendment.