Crime and Courts Bill [HL]

Lord Marks of Henley-on-Thames Excerpts

Monday 10th December 2012 Lords Chamber

[Lord Goldsmith]

My Lords, I want to speak to Amendment 116ZA and to refer to Amendment 116E, which stands in my name in this group. Both amendments touch on a similar point, although possibly from different perspectives. I note that my noble friend Lord Beecham and I have perhaps started in slightly different places on this part of the Bill, although maybe we are moving towards a middle position. As the House knows, I am one of those who has been more in the enthusiastic group who support the introduction of deferred prosecution agreements. I believe that they are capable of assisting enormously, in particular cases, in dealing with the problems with which we are faced in crime.

I am sorry that the Government have such a blinkered approach to where these deferred prosecution agreements can assist. What obviously lies behind my Amendment 116E is at least to enable other offences to be added to the list of those that are covered by deferred prosecution agreements without the need for further primary legislation. I have no illusions as to whether the Government will accept this amendment. I am grateful for the meeting to which my noble friend Lord Beecham has already referred and for the attention paid to what was said by a number of us in that meeting. I am also clear that the Government will not move, which is a shame.

Although my amendment deals with offences, the Minister will recall that not only I but others in this Chamber have been concerned also about the ambit of deferred prosecution agreements. It is not strictly speaking the subject of an amendment tonight but the question of reviewing this includes whether it can be reviewed not only to consider the efficacy of the system as it is being introduced but also whether its ambit is appropriate, both in terms of offences and, I repeat, in terms of individuals.

Perhaps I may say this to the noble Lord and, through him, to his ministerial colleagues and their officials: I believe that the Government are making a big mistake in not seeing the advantage of deferred prosecutions in other cases. In this House previously, in Committee, I referred to the benefits that I have seen, particularly in relation to drug offences. If you go to any Crown Court in the country—certainly, this was the case when I sat regularly there and I believe it is likely still to be the case—you will see case after case to do with drugs. It is either a drug offence, or an offence of petty theft, burglary, mugging or something of that sort to get money for drugs. It is hugely damaging to our society but we do not seem to be that good at finding solutions to it. I believe that the carrot and stick approach, which deferred prosecution agreements provide, is one way to deal with that.

I know that the Minister will not respond positively to that today and I know that he will not respond positively to my amendment. However, as my noble friend Lord Beecham said, I hope that there can be a clear commitment to review the operation. I ask the Minister to accept that that commitment should include looking at not just whether the system is working, as it is about to be enacted, but also whether it could be more broadly based in relation to offences or to individuals. If he cannot give that assurance, I, for one, would support—although this was not my position previously—my noble friend Lord Beecham’s amendment as a way of forcing that review.

[Lord Marks of Henley-on-Thames]

I shall speak briefly to both amendments. While I support in outline the idea that there should be a review, the amendment in the names of the noble Lords, Lord Beecham and Lord Rosser, does not include a provision for an extension of the schedule. It seems to me that a review should be part of a continuing process. I agree very much with the noble and learned Lord, Lord Goldsmith, that there is considerable potential for deferred prosecution agreements. I would expect a review to come out with a recommendation for extension, rather than for limitation, and certainly for continuation of the system unless it turns out to have been a failure, which is not the expectation that I have.

I also agree with the noble and learned Lord in his amendment. I think it is a shame that the range of offences is confined to financial and economic offences. I entirely understand the Government’s position that, at this stage, this is an exercise in putting a toe into the water in unfamiliar territory, and I accept that it is unfamiliar territory. However, the extension of the offences under paragraph 31 of the schedule is subject to the affirmative resolution procedure. For my part, I do not see a huge distinction between adding other financial and economic offences to the list of offences under that procedure and adding the other offences of which we spoke at the meeting and in the debate in Committee. Health and safety and environmental offences have been mentioned, and drug offences were mentioned by the noble and learned Lord, Lord Goldsmith.

We are in the middle of providing for what the Minister has called a rehabilitation revolution. I regard that as a useful phrase and a useful and beneficial concept. It seems to me that deferred prosecution agreements, with their potential for arrangements to be made to encourage future compliant behaviour, can be seen as part of that overall rehabilitation revolution. I know that my noble friend will not accept these amendments tonight, but I urge him to bear in mind, with those in his department in charge of these things, that a wider view can be taken of these agreements.

--- Later in debate ---

[Lord Beecham]

My Lords, I respectfully adopt and support most of my noble and learned friend’s comments and indeed most of his amendments. If I had a preference between Amendments 116A and 116B, I think it would be Amendment 116B, but it would be interesting to hear which way, if either, the Minister inclines on that particular aspect.

It seems very sensible that other possible consequences of a failure to comply should be incorporated, so I endorse Amendments 116C and 116D. As to the amendment in my name and that of my noble friend Lord Rosser, we return again to the principle of having these novel matters debated openly before the new process is set in motion. In this particular case, it is a matter of having the financial penalties and parameters that would be proposed by the Sentencing Council subjected to scrutiny and debate but not, as I suggested in Committee, to an affirmative procedure. In retrospect, I think that was going too far and perhaps trespassing on the role of the Sentencing Council in an unacceptable way, although I note that there seem to be some judicial misgivings about the operation of the council. Be that as it may, it does not relate specifically to this point.

Again, bearing in mind the need to carry public opinion with us on this new process, it would be helpful to have that debate before the Sentencing Council’s proposals became adopted. The novelty of the process is such that not only would that be justified but it would actually assist in securing public acceptance. I can anticipate the next amendment, which is very much on the same line; again, having it debated should inform both public opinion and possibly the final decision-makers in a way that can only contribute to the success of the experiment, if that is what it is. I suspect that it will be a successful experiment on which we are embarking.

On the question of incentives, my noble and learned friend is right. It is quite clear from the American example—I repeat for the second or third time that very much larger sums are secured under the American system—that an incentive has to be provided. Whether that is a maximum of one-third or not is another matter. I am not entirely surprised that most respondents disagreed with a maximum of one-third; no doubt they would prefer it to be larger, which underlines my point, but there needs to be some open debate about this before a final decision is made.

In these circumstances I hope that the Government will, even at this late stage, acknowledge that there is substance in my noble and learned friend’s amendments, and I hope that they will also agree that my proposal would actually assist in gaining acceptance for this new process, both by the public at large and by those who will potentially be the subject of its operation. In that spirit, I beg leave to move the amendment in my name.

[Lord Marks of Henley-on-Thames]

My Lords, I will be brief. In relation to Amendments 116A and 116B, after two debates in Committee and our meeting, I am still entirely unclear why the Bill as drafted contains only the all-or-nothing choice in relation to financial penalties. As the noble and learned Lord, Lord Goldsmith, pointed out, the arrangements proposed are that the financial penalty should be optional only, but if there is a financial penalty then it must be broadly comparable to the fine that would be imposed on a guilty plea. I suggest that that is illogical because there is no room for such a reduced financial penalty, and there is no reason why there should be no room for one.