Police, Crime, Sentencing and Courts Bill (Eleventh sitting)

Chris Philp Excerpts

Committee stage
Thursday 10th June 2021 Public Bill Committees

[The Chair]

Do any other Members wish to speak before the Minister rises to his feet? I do not see you all jumping up and down, so I call the Minister.

[The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)]

It is a pleasure, as always, to serve under your chairmanship, Sir Charles, and it is a pleasure, as always, to respond to the shadow Minister. Let me start by saying how glad I am to hear that he and the Opposition generally welcome the principles that lie behind the changes in these clauses. We intend to reduce the number of cautions from the current six to the two contemplated in the Bill, following, as he rightly said, the initial pilot with three police forces, which has now expanded to 14 or 15 police forces. The feedback that we received from those police forces is that they find the simpler structure of cautions much easier to follow and much more helpful. Broadly speaking, it sounds as though we are all on the same page—both sides of the House, and the police as well. I am glad that we are starting from a very similar place.

The shadow Minister asked a number of questions about the involvement of victims in the administration of cautions. Of course, victims should be at the heart of the criminal justice system—we all believe very strongly in that. On victims, I draw the Committee’s attention to paragraph 6.7 of the victims’ code, which says:

“Where the police or the Crown Prosecution Service are considering an out of court disposal you”—

the victim—

“have the Right to be asked for your views and to have these views taken into account when a decision is made.”

The police and CPS must make reasonable efforts to obtain the views of victims, and they must communicate with victims on the topic. As the shadow Minister rightly said, it is clear that victims need to be part of this endeavour, and paragraph 6.7 of the victims’ code ensures that.

The shadow Minister asked a second series of questions about the fact that both levels of caution—the diversionary caution and the community caution—have a requirement for conditions to be attached. He expressed some concern that that might impose additional bureaucracy on police forces. He also asked about the cost of the whole scheme more generally and mentioned the estimate that the whole of the criminal justice system cost might be in the order of £15 million a year.

On the conditions, it is important that the cautions have some effect. It is important that where someone has committed an offence and admitted guilt—I will come to the point about admission of guilt in a moment—there should be some sort of follow-up action to ensure remedial activity and that an appropriate step is taken. If we simply let someone go with no follow-up step, it undermines and diminishes the seriousness of the fact that they have committed an offence and admitted to it. It perhaps misses an opportunity to take a step that will reduce reoffending in future. In general, taking steps to stop people reoffending is a good thing. There are some opportunities that we are very keen to embrace via these conditions and sentences passed by the court. For example, if someone has a drug addiction, an alcohol addiction or a mental health problem, we want that to get treated. These cautions are an opportunity to impose a condition—seeking treatment, for example. Of course, in a court setting, there are community sentence treatment requirements, alternative dispute resolutions, mental health treatment requirements and so on. These cautions have an important role to play in ensuring that the underlying causes of offending get addressed.

[Bambos Charalambous]

Will the Minister give way?

[Chris Philp]

I will just finish the point, and then I will take the intervention in a moment.

There are opportunities to take a more calibrated approach if police officers or the Crown Prosecution Service think it is appropriate. First, in the code of practice that we will be tabling to accompany these new diversionary and community cautions, there will be significant latitude and quite a lot of flexibility for police officers and the CPS to set appropriate conditions. They could be quite low level. For a low-level offender, where it is not appropriate to impose an onerous condition, or where the police feel it would impose an unreasonable burden on police officers themselves, a much lower, light-touch condition could be applied. That would address the concern that the shadow Minister raised.

There is also the option of a community resolution, which the NPCC says it will retain. There will be the two cautions set out in statute, and there will be the community resolution option too. Although the community resolution comes with conditions, there is not an obligation for them to be followed up, so the administrative burden would not apply.

On the cost point, of course we should be aware that the police are generally receiving a great deal of extra funding as part of the recent police settlements in order to support the police uplift programme—the extra 23,000 police officers. It would be a good use of a bit of that time if it were spent on following up the conditions that have been imposed to try to prevent reoffending. We all agree that reoffending is too high; that is bad for the individual and society as a whole. That is a good use of a bit of the additional police resources.

[Alex Cunningham]

Will the Minister give way?

[Chris Philp]

Perhaps I should give way to the hon. Member for Enfield, Southgate first, and then I will give way to the shadow Minister.

[Bambos Charalambous]

I am grateful to the Minister. On the issue of addressing the root of the offending in the first place, I am chair of the all-party parliamentary group on attention deficit hyperactive disorder, and people with ADHD are disproportionally represented in the prison population. That is partly because of screening—they are not screened early enough and are sometimes not aware that they have ADHD. Has the Minister given any thought to whether some of the conditions could involve screening for people with ADHD if that is one of the roots of the offending?

[Chris Philp]

That is an extremely good point. That is the sort of issue that we should take up in the code of practice that accompanies the statutory framework. That is exactly the kind of thing that should be picked up. Where someone has a need for treatment of some kind, whether for drugs, mental health—ADHD in that example—or alcohol addiction, we need to try to get the underlying cause of the offending sorted out. That is something that we can and should pick up in the accompanying code of practice, and I am very grateful to the hon. Gentleman for raising it.

[Alex Cunningham]

The Minister is talking a lot of good sense, and I take issue with very little of what he has to say. I am keen to understand whether he is content that we are seeing lower numbers of out-of-court disposals. He talks about reoffending, which we all want to see reduced, but there is no evidence that this measure will contribute to that. Would he suggest otherwise?

[Chris Philp]

Clearly recent data, over the past 15 months or so, has been significantly distorted because of the effect of the pandemic on the criminal justice system, policing and everything else, so we need to be careful about post-dating data from February or March 2020.

The reoffending point links to the comments of the hon. Member for Enfield, Southgate. We need to ensure that, in the code of practice, we are guiding police forces and the CPS to the follow-up activities and conditions that are most likely to deliver a reduction in reoffending. The shadow Minister is right that, although the police preferred the new system that we are introducing, there was not evidence of a reduction of reoffending in the pilots areas. We have an opportunity via the code of practice to ensure that the conditions are proposed and designed, like the one that the hon. Member for Enfield, Southgate just proposed, with the purpose of reducing reoffending. This is an opportunity that we should seize, along the lines just suggested.

--- Later in debate ---

[Allan Dorans]

Does the Minister agree that the regulatory framework of diversionary and community cautions will prevent many young people from entering the formal criminal justice system—including having their fingerprints and photographs taken—which could affect their life chances and employment chances in later years for a mistake that they made at a very young age; that these measures will be welcomed by the parents who see their children perhaps having a second opportunity to live a crime-free life; and that this will allow rehabilitation within the family and the community?

[Chris Philp]

I do agree. Of course, I know that the hon. Gentleman had a long and distinguished career with, I think, the Metropolitan police.

[Allan Dorans]

It was.

[Chris Philp]

Therefore the hon. Gentleman’s comments are based on that long experience of public service in the police force. It is clearly better if we can get people to stop their offending by way of early intervention such as this, rather than having them end up in a young offenders institution or somewhere similar, which often leads to a pretty bad outcome. We should take this opportunity to stop that pattern of behaviour developing and worsening. That is why these conditions are important —to ensure that that prevention and rehabilitation take place. I fear that otherwise we are missing an opportunity —an opportunity that the shadow Minister is poised to grasp.

[Alex Cunningham]

I am really interested in what the Minister said about working with ethnic minority and BME communities. We have seen a tremendous cut in services over the last 10 or 11 years, so does he see the potential of legislation such as this to increase even further the need for the Government to think again and invest more in organisations that can help people to understand what the Government are about and how young men in particular—it is young black men who tend to be affected most—can avoid the criminal justice system and move on with their lives?

[Chris Philp]

Exactly—avoid the criminal justice system by desisting from criminal behaviour.

Obviously, a lot of initiatives are under way, particularly via the funding for serious violence reduction units, which has increased a great deal in the last couple of years. The work of serious violence reduction units with those communities, talking about issues exactly like this, is the right way to do that. I will make sure that my colleague the Minister for Policing is appraised of our discussions this morning—this afternoon, now—so that he can ensure that that is reflected as he works with SVRUs and the police on issues such as this.

[Alex Cunningham]

I am very grateful to the Minister for giving way, and I am sure that he will excuse me for being parochial about this. In Cleveland, we have the third-highest rate of serious violent crime in the country, but the Cleveland Police force has been passed over in the past when it has come to funding for the initiatives he is talking about. Will he remind the Policing Minister of the particular issues that we face in Cleveland, and perhaps secure us some more funding?

[Chris Philp]

It sounds like I have been engaged to act as a lobbyist on behalf of Cleveland, but I will pass that on, and while I am at it, I will mention the needs of Croydon, my own borough.

[The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)]

And Lincolnshire!

[Chris Philp]

I will not forget the fine county of Lincolnshire, represented by the Minister for Safeguarding.

[Alex Cunningham]

Because there is so much crime all over the place!

[Chris Philp]

Well, I am afraid that in the case of Croydon, there is quite a lot of crime. I will add Cleveland to my communication.

I turn to the large group of amendments starting with amendment 11, which the shadow Minister moved. He proposes replacing the word “diversionary” with the word “conditional”. I understand entirely what he is trying to do with that amendment, but unfortunately there are technical and legal reasons why that does not work. Essentially, the reason—as he touched on when moving the amendment—is that the concept of a conditional caution already exists in the current form of statutory out-of-court disposals for adults, which were enshrined in part 3 of the Criminal Justice Act 2003.

We cannot change the name because there would be transitional provisions when the old cautions may still apply, and that may lead to confusion about which type of caution is being referred to, whether that be the old conditional caution, which may still apply in some cases—depending on the time of the offence—or the new conditional caution, which would be called a “conditional caution” if we adopted the amendment. It would lead to confusion about which caution was in force. As the new diversionary caution is different from the old conditional caution, we think that, both for legal reasons and for reasons of general confusion and clarity, the use of a different word—“diversionary”, in this case—is the right thing to do.

Amendments 46 and 48 are in the shadow Minister’s name but I do not think that he moved them. Should I defer replying to them?

[Alex Cunningham]

We are not debating them.

[Chris Philp]

In that case, I will not speak to those now—I will hold back for a subsequent opportunity—and I trust that I have answered the shadow Minister’s excellent questions.

[Alex Cunningham]

I appreciate the Minister’s response. As far as the amendment is concerned, I accept that we are perhaps all looking at different levels of confusion within the system. It is just a shame that we have to have any confusion at all. I do not intend to press the amendment to a vote, but I repeat to the Minster what I said before: we need to address disproportionality across the whole justice system. There is no doubt that these particular measures will add to that, and it is important that the Government take measures to ensure that young people—and even older people—coming into the system have a full understanding of what they are getting into as a result of the Government’s proposed changes to the law. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

--- Later in debate ---

[Chris Philp]

Smiling as always, Sir Charles. I thank the shadow Minister for his speech. I made a number of the points that I would make in response in my comments a few minutes ago, so I do not want to re-elaborate on them at too much length, lest I wear thin the patience of colleagues. I will just reiterate briefly the two or three key points in response to the shadow Minister.

First, the Government think that having some level of conditions is an inherently good thing because it means there is a mechanism by which follow-up can take place, and it provides an opportunity for rehabilitation. Secondly, in the code of practice, which we have discussed already, there will be considerable latitude over how the conditions are calibrated. It could therefore be possible to have quite light-touch conditions. What we will take away is that, in the code of practice that gets drafted, and subsequently tabled and approved by Parliament, there is a wide range of conditions, including some at the lower end that are not unduly onerous on the police to monitor and follow up. Thirdly, the community resolution is still an option available to the police, and although it has conditions, it does not require follow-up.

A combination of those three considerations makes the approach being taken the right one. The key point is that the code of practice is very important. We will no doubt debate it when it gets tabled and voted on in a Delegated Legislation Committee. I hear the shadow Minister’s point, and the code of practice will reflect that.

On the final point, about disproportionality, which the shadow Minister and the hon. Member for Enfield, Southgate raised, we will certainly be mindful of disproportionality considerations. As the hon. Member for—help me out—

[The Chair]

Ayr, Carrick and Cumnock.

[Chris Philp]

Ayr, Carrick and Cumnock—

[The Chair]

There we go. Mr Dorans, are you happy with that description of your constituency?

[The Chair]

Excellent.

[Chris Philp]

As the hon. Gentleman said in his intervention, this is an opportunity to divert people from a path towards more serious crime and into a regular life. That is important for everyone, including some of these communities, which get themselves into more trouble than we would like. That point is well made.

[Alex Cunningham]

I am grateful for the Minister’s response. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

--- Later in debate ---

[Alex Cunningham]

I beg to move amendment 8, in clause 76, page 71, line 21, at end insert—

“(8) The Secretary of State must, within the period of 12 months beginning with the day on which this Act is passed, and every 12 months thereafter, lay before Parliament a report on the use of cautions in accordance with this Part.”

I will not keep the Committee long on this simple amendment, which would compel the Secretary of State to report annually to Parliament on the use of cautions, as established under this clause. As I said earlier, in 2019 only about 192,000 out-of-court disposals were issued in England and Wales, which is the lowest number in a year since 1984. I bear in mind what the Minister said but, of course, those figures refer to 2019, not the time covered by the pandemic.

The use of out-of-court disposals has been in decline since 2008, after it peaked at 670,000 disposals in 2007. Their use has fallen nearly three quarters since then. In 2008, community resolutions were introduced, and they remain the only type of out-of-court disposal that has been used at a similar rate in each of the past five years. That has happened while recorded crime has increased by more than 1 million offences, from about 4.3 million in 2010 to about 6 million last year. I mentioned earlier that we have concerns that the new restrictions on using out-of-court disposals for certain offences are likely to have some impact on out-of-court disposal volumes, driving down their use further. I again ask the Minister to clarify whether he thinks there will be more or fewer out-of-court disposals in the future.

It is all the more important that we monitor the new system to ensure that the use of out-of-court disposals does not continue to decline significantly. Although I appreciate that there has been a pilot and evaluation done of a two-tier framework, this is the one that is already in use. There has not been such an assessment of this new proposed two-tier framework. I have already mentioned the reservations that we have about attaching conditions to all cautions and the potential impact that that will have on disproportionality. Again, these changes need to be monitored to ensure that they do not have unwanted, perverse consequences. We are all keen to see the use of effective out-of-court disposals increase, not decrease. They can allow police to deal quickly and proportionately with low-level, often first-time offending and help to keep people out of the formal criminal justice system, which in many cases is preferable for their communities and for the Government in the long run.

An annual report to Parliament would allow for the necessary scrutiny of the new system and help to stem the decline in the use of out-of-court disposals. I hope that the Minister agrees that that would be a useful exercise. It will be good to hear more generally from him about Government plans to monitor and scrutinise the new system.

[Chris Philp]

On the review of how out-of-court disposals are used and are going, they are, as the shadow Minister said, already recorded by all forces in England and Wales and reported to the Home Office and the MOJ for statistical purposes. The figures appear in criminal justice statistics, published quarterly, which include performance data tables for each individual police force, as well as trends in use—figures from which the shadow Minister was likely quoting a few minutes ago.

There is therefore already complete transparency on the numbers, which enable Parliament, the Opposition and the Departments—the Ministry of Justice and the Home Office—to look at them, take action, call parliamentary debates and so on. Those figures are all in the public domain.

In addition to that, however, all police forces are already required to have an out-of-court disposal scrutiny panel, led by an independent chairperson. Those panels are extremely important in holding the police to account and ensuring that disposals are being used appropriately, to provide assurances that difficult decisions are being made properly and to provide effective feedback to police officers and their forces.

Already, therefore, we have two levels of scrutiny: the data being reported, aggregated by police force and reported nationally to the Home Office and the MOJ, so we can debate it in Parliament; and, for each individual force area, a scrutiny panel. In addition, a standard review of legislation takes place after a Bill receives Royal Assent. I suggest to the Committee that those three mechanisms between them are sufficient.

The shadow Minister, however, is right to point to the figures. We in Parliament should be vigilant about them. If we, the Opposition or any Member of Parliament are concerned about how those quarterly figures look, there are a lot of ways to express those concerns in Parliament—by way of a Westminster Hall debate, an Opposition day debate or any of the usual mechanisms. I suggest that the existing mechanisms are adequate. I invite everyone in Government and in Parliament to use them.

[Alex Cunningham]

On this occasion, we are in a different place. I appreciate what the Minister said about the various methods through which information is available and about the opportunities to debate the issues, but I cannot understand why the Government are reluctant to have a formal report on the new system. We have discussed at some length the considerable reduction in the number of cautions used over the past 10 or 15 years. That decline is continuing. There is no evidence that the new system will result in any increase in the use of the cautions. For that matter, it is important for us to hold the Government particularly to account, so I will press for a vote on the amendment.

Question put, That the amendment be made.

--- Later in debate ---

[The Chair]

With this it will be convenient to discuss clauses 78 to 85 stand part.

[Chris Philp]

Clauses 77 to 85 essentially provide for the statutory basis on which the diversionary caution—the higher of the two new cautions—will be introduced. We have already discussed at some length the principles that underpin the diversionary caution, and clauses 77 to 85 simply provide for the details necessary to facilitate their introduction. Given that we have already had a fairly extensive discussion on the principles, I will go through the clauses relatively quickly.

Clause 77 specifies the criteria for giving a diversionary caution, as introduced in clause 76, which we have just agreed. An authorised person may give a diversionary caution to a person over 18 years of age, subject to the specified conditions being met. The clause specifies key safeguards whereby an authorised person or prosecuting agency can authorise the use of this caution. They must establish that there is sufficient evidence to charge, that the recipient admits the offence and that the recipient signs and accepts the caution, along with understanding the effect of non-compliance. Those requirements mirror the provisions in the Criminal Justice Act 2003 that apply to existing conditional cautions. The requirements are important safeguards, given the consequences that can flow from the breach of a condition attached to a diversionary caution, as we have discussed.

Clause 78 establishes the types of conditions that may be attached to a diversionary caution. We will expand on that in the code of practice that we discussed. The provision is similar to the existing conditional caution. Again, as we have already discussed, it requires reasonable efforts to be made to ensure that the victim’s views are sought before the conditions are set out. We have talked about the importance of taking victims’ views into account.

Clause 79 provides for the rehabilitation and reparation conditions that may be attached to a diversionary caution. Further to the point made by the hon. Member for Ayr, Carrick and Cumnock, we talked about the importance of rehabilitation as well as reparation. The clause specifies the sort of activities that may be undertaken. 

Clause 80 introduces a financial penalty condition. Clause 81 deals particularly with conditions that might attach when the offender is a foreign national. Clause 82 introduces a method whereby an authorised person or prosecution authority may, with the offender’s consent—should that be necessary subsequently—vary the conditions attached to a diversionary caution. 

Clause 83 deals with the effect of failure to comply with a condition attached to a diversionary caution. As I said earlier, criminal proceedings can be instituted against the offender for the index offence in the event of any breach. That is why a formal admission of guilt is so important.

Clause 84 grants a constable power to arrest the offender without a warrant where the constable has reasonable grounds for believing that the offender has failed, without reasonable excuse, to comply with any condition attached to a diversionary caution. Clause 85 clarifies how the Police and Criminal Evidence Act 1984 will be applied in the event that an offender is arrested under clause 84 if a breach has occurred. 

The clauses essentially implement the principles that we discussed when we considered clause 76 a few moments ago.

--- Later in debate ---

[The Chair]

I am sure it is the Minister’s intention to be helpful. Does he want to respond to the shadow Minister in winding up this part of the debate?

[Chris Philp]

I have already made the points that I wanted to make, but I will respond to one or two of the shadow Minister’s questions.

Indictable-only offences are by definition extremely serious. They are the most serious offences, so there would be an expectation of proper prosecution in such cases.

The shadow Minister asked what the exceptional circumstances might comprise. I cannot give him speculative examples, but the meaning of the term “exceptional circumstances” is well understood in law, and it is a very high bar. It is not a test that would be met readily or easily.

On the fact that the limit on the fine may be specified by a statutory instrument, there is a desire to retain a certain measure of flexibility. I understand the shadow Minister’s concern that the fine may end up escalating to an unreasonably high level, but as he acknowledged in his questions, it is subject to a vote in Parliament. If Parliament feels that the level of fine is inappropriately high, it is open to Parliament to simply vote it down. Then the Government would have to think again and come back to the House with a fine at a more reasonable level. On that basis, I recommend that the clauses stand part of the Bill.

Question put and agreed to.

Clause 77 accordingly ordered to stand part of the Bill.

Clauses 78 to 85 ordered to stand part of the Bill.

Clause 86

Giving a community caution

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss clauses 87 to 93 stand part.

[Chris Philp]

Rather like the previous group of clauses, which implemented the diversionary cautions, clauses 86 to 93 lay out the details of the proposed scheme for community cautions, implementing the principles that we have already debated pursuant to clause 76. As I did a few minutes ago, I will go through each clause quickly.

Clause 86 specifies the criteria for giving a community caution. It must be given by an authorised person to someone over the age of 18. The clause specifies the key safeguards whereby an authorised person or prosecuting authority can authorise the use of the caution: establishing sufficient evidence to charge, and an admission of guilt from the offender, who signs and accepts the caution and understands the effect of non-compliance. That mirrors precisely the provisions of clause 77, which we discussed a few minutes ago.

Clause 87 establishes the type of conditions that can be attached, specifying that they should be rehabilitative or reparative—that is very important for the reasons that we have already discussed. It requires that reasonable efforts are made to ascertain victims’ views.

Clause 88 introduces the permissible rehabilitation and reparation conditions, which must have the objective of facilitating rehabilitation in those cases. The clause provides that such conditions may be restricted in some cases and contain unpaid work conditions or attendance conditions.

Clause 89—again, mirroring the previous group—introduces the financial penalty condition. Clause 90 provides the framework for registering and enforcing financial penalties as part of this regime.

Clause 91 provides a framework for court proceedings arising from the enforcement of the financial penalty, essentially to ensure that it gets paid if someone does not pay it. Clause 92 introduces a method for an authorised person or prosecuting authority to vary the conditions, which, again, mirrors the previous group of clauses.

Clause 93 deals with the effect of community cautions where criminal proceedings may not be instituted against the offender for the offence. In particular, if the offender fails to comply with the condition under community caution without a reasonable excuse, the condition may be rescinded and a financial penalty order may be imposed instead, so the consequence of breach here is financial penalty rather than prosecution.

I hope that gives the Committee adequate oversight of the effect of clauses 86 to 93.

[Alex Cunningham]

Although we were on relatively familiar ground with the new diversionary cautions, the community cautions, on which clauses 86 to 93 set out the detail, are very different from the lower-tier out-of-court disposals currently in use. In fact, they are much more similar to the existing conditional cautions that the diversionary cautions are already designed to replace. There are lots of cautions here—cautions and cautions and cautions.

I spoke earlier about our concerns about the necessity of attaching conditions to the community cautions, so I will not tread the same ground again, but that is an important point. We very much support the simplification of the out-of-court disposal system and the introduction of the two-tier framework, but why are the Government introducing two tiers that are so similar? We should be able to get rid of the confusion of the current system of six out-of-court disposals without so severely restricting the choices of police officers who deal with such a wide range of low-level offending for which a range of penalties may be appropriate.

I understand that the community caution is intended to replace the community resolution. There are two major differences between the two. A community caution will be formally administered by the police, like other cautions, so it will appear on an offender’s criminal record in the same way that other cautions do. There will be a clear statutory rule about the conditions that can be attached to it. That is quite a jump from the community resolution. Community resolutions are voluntary agreements between the police and an accused person. They do not appear on an offender’s criminal record, and the actions agreed to are not legally enforceable.

--- Later in debate ---

[Alex Cunningham]

My colleague is right to raise the issue of disproportionality in the system. Anything that increases that is not good for us as a country and is certainly not good for the young people involved. It is important that the Government bear that in mind as they bring the measure forward. More importantly, as I said, the Government can get into a situation where they recognise that communities—ethnic minority communities, call them what we will—need to have an understanding of the changes that the Government are proposing, so that we do not find more young people, young black men in particular, with criminal records when that is not necessary.

Secondly, the community cautions will now involve financial penalties. Officers will be able to attach a fine to a community caution as a punitive condition. Failure to meet any of the conditions, including a financial penalty condition, could result in a police-issued fine. Again, that would be quite a departure from the community resolution. Offenders might be asked to pay damages to their victims as part of a resolution, but community resolutions are not used to fine individuals.

Will the Minister tell me, therefore, whether the intention is to replace the community resolution entirely with community cautions? I ask, because Transform Justice has rightly called for some clarity in this area:

“The status of community resolutions under the proposed legislation is not clear. Clause 96 ‘Abolition of other cautions and out-of-court disposals’ states that ‘No caution other than a diversionary or community caution may be given to a person aged 18 or over who admits to having committed an offence’. We are unsure what this means for community resolutions, although we understand the intention is that they will remain available to police if they wish to use them.

Given the value of community resolutions, as an out of court disposal that does not require a formal admission of guilt, the legislation and accompanying regulation should make clear in Clause 96 that use of community resolutions will not be prohibited under the new framework.”

I have already discussed our concerns about the need for a formal admission of guilt for the community caution and the potential that has to deepen disproportionality in our criminal justice system. My hon. Friend the Member for Enfield, Southgate just raised that issue. We all know that there are benefits to having a light-touch disposal to deal with low-level offending in some cases where appropriate. Keeping people out of the formal justice system at this level can help keep them out of it for good and so I wonder whether the Minister thinks that we might be losing a helpful method of disposal here. Finally, how does he anticipate that the low-level offences that benefited from community resolutions before will now be handled?

[Chris Philp]

I thank the shadow Minister for his speech and his questions. For clarity, in answer to his principal question, the community resolution will still be available to use. It will not be removed by the Bill. As he said, community resolutions have conditions attached to them, but they do not require the admission of guilt— they simply require someone to take responsibility—and, should the conditions not be adhered to, there is in essence no consequence to follow that.

That low-level entry provision will therefore still exist and be available to police officers to use. Because that will still exist, it is appropriate to pitch the community cautions—the ones we are debating—somewhere in between the community resolution, which will remain, and the diversionary caution that we just debated. That is why it is pitched where it is.

There are three principal differences between the diversionary caution and the community caution. The first is on disclosure. We will talk about this when we consider an amendment later, but the community caution is not disclosable in a criminal record check and so on from the moment that the condition ceases, whereas for the diversionary caution a spending period goes beyond that.

The second difference is that, as the shadow Minister said, the consequence of breaching the community caution is the imposition of a fine, whereas for the diversionary caution it can lead to substantive prosecution. Thirdly, the range of offences is somewhat different.

I hope that reassures the shadow Minister that the community resolution will remain—it is not being abolished—and therefore we have a sensible hierarchy of provisions available for the police to choose from. I hope that provides him with the reassurance that he was asking for.

Question put and agreed to.

Clause 86 accordingly ordered to stand part of the Bill.

Clauses 87 to 93 ordered to stand part of the Bill.

Clause 94

Code of practice

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss clauses 95 and 96 stand part.

[Chris Philp]

The clauses in this group apply to both types of caution and provide an overarching framework in which the new cautions will sit. Each clause has a particular function, and I will address them in turn.

Clause 94 introduces a general code of practice and requires the Secretary of State to prepare it—we have talked about that already. It specifies the kind of matters that such a code will include, such as the circumstances within the clauses, the procedure, the conditions that may be imposed and the period of time. We talked about that earlier. It is very important that we get that right for the rehabilitative purposes that we have discussed and to cover issues such as the one that the hon. Member for Enfield, Southgate mentioned. That includes who may give the cautions, the manner in which they may be given, the places where they will be given, how the financial penalty should be paid, how we monitor compliance, the circumstances in which a power of arrest may arise, and so on. I should add that the code cannot be published or amended without the prior consent of the Attorney General. We need this clause to ensure the code can exist.

Clause 95 enables the Secretary of State to make regulations placing restrictions on the multiple use of diversionary and community cautions. They should have reference to the number of times a particular individual has received cautions previously. The regulations made under this clause will be laid in draft form before Parliament for scrutiny and will be subject to an approval resolution of both Houses. That provides a key safeguard and ensures that the out-of-court disposal framework is being used as intended and is not being used inappropriately—for example, where there is repeat offending that should be handled through more serious means, such as prosecution.

Clause 96 abolishes the previous caution regime, as the shadow Minister said, but does not abolish community resolutions. That obviously follows the widespread consultation that we had previously and lays the groundwork for the new system that we debated in the previous two groups.

Question put and agreed to.

Clause 94 accordingly ordered to stand part of the Bill.

Clauses 95 and 96 ordered to stand part of the Bill.

Clause 97

Consequential amendments relating to Part 6

Question proposed, That the clause stand part of the Bill.

[Chris Philp]

Clause 97 introduces schedule 10, which makes various consequential amendments to existing legislation to ensure the proper operation of the new two-tier system, which we have just discussed, and the removal of the existing out-of-court disposals. Clause 97 and schedule 10 make those technical changes.

Question put and agreed to.

Clause 97 accordingly ordered to stand part of the Bill.

Schedule 10

Cautions: consequential amendments

[Alex Cunningham]

I beg to move amendment 117, page 228, line 15, in schedule 10, leave out sub-paragraphs (2) and (3) and insert—

‘(2) In paragraph 1(1)—

(a) for “—“ substitute “at the time the caution is given.”, and

(b) omit sub-sub-paragraphs (a) and (b).”

This amendment would remove the spending period for cautions.

We have discussed a number of important matters over the course of the morning, all of which impact on the lives of young people and older people. They have all been extremely important issues, but for me this amendment is particularly important, because it would make life a lot easier for a lot of people, and probably contribute more than some of the other things that we have discussed to keeping them out of the criminal justice system.

Amendment 117 would remove the spending period for cautions. It would revise the text of the Rehabilitation of Offenders Act 1974 to the following:

“For the purposes of this Schedule a caution shall be regarded as a spent caution at the time the caution is given.”

Currently the upper-tier disposal of a conditional caution has a spending period that is the earlier of three months or the completion of the caution, and the Bill will maintain that spending period for the diversionary caution. We believe that the spending period associated with diversionary cautions should be removed so that those who receive one are not forced to disclose this record to potential employers. The effect of the spending period attached to cautions is to increase the barriers to employment for those who are diverted from court.

Given the Government’s commitment to reform of rehabilitation periods elsewhere in the Bill—at part 11—we believe that this is a good opportunity to continue the direction of travel that the Government are on, make another positive change in this area and remove the rehabilitation period for cautions as well. The Government may believe that a three-month spending period is required for a diversionary caution in order to support public protection. However, there is strong evidence, of which I am sure the Minister is aware, that employment is one of the most important factors, if not the most important, in enabling people to cease offending. Research has also found that employers discriminate against people with criminal records and that many do not differentiate between a caution and a conviction.

A three-month rehabilitation period is short enough to have little impact on public protection, but its existence requires people in employment to declare the caution and so risk losing their job. It acts as a barrier to those seeking work, education, insurance and volunteering opportunities. It is also important to remember that criminal record disclosure in itself is not really a public protection measure: the general public cannot check a person’s record or require them to disclose it. In any event, under present guidance, if the police or CPS believe that someone is a legitimate risk to others, they would never meet the public interest test for caution instead of charge.